Thrane & Cowen
[2022] FedCFamC2F 542
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thrane & Cowen [2022] FedCFamC2F 542
File number: SYC 8267 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 29 April 2022 Catchwords: FAMILY LAW - Interim parenting – Review of decision of Senior Judicial Registrar – unilateral relocation of children by mother – ordered to return children to New South Wales – children to live with mother and spend significant time with father – restraints concerning father’s use of alcohol – mutual non-denigration order Legislation: Family Law Act 1975 (Cth) s60B(1), s60CC, s60CC(2), s60CC(2A), s60CC(2A), s61DA, s65DAA
Federal Circuit and Family Court of Australia Act 2021 s254
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r14.07, Schedule 4 Clause 2
Cases cited: Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
JG & BG (1994) 18 Fam LR 255
Marvel & Marvel [2010] FamCAFC 101
Morgan & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 71 Date of hearing: 18 March 2022 Place: Hobart Counsel for the Applicant: Mr M Weightman SC Solicitor for the Applicant: Nicole Evans Lawyers Counsel for the Respondent: Mr S Scarlett SC Solicitor for the Respondent: Brydens Lawyers ORDERS
SYC 8267 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR THRANE
Applicant
AND: MS COWEN
Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
29 April 2022
THE COURT ORDERS THAT:
1.The Orders made by Senior Judicial Registrar Hoult on 14 February 2022 are discharged.
2.Orders 2, 7, and 16 to 24 inclusive of the Orders made on 21 January 2022 are discharged.
THE COURT ORDERS, UNTIL FURTHER ORDER:
3.Within 21 days of these Orders the mother MS COWEN (“the mother”) shall cause the children X born 2015 and Y born 2019 (collectively referred to as “the children”) to be returned to the City C Local Government Area, New South Wales.
4.The children live with the mother.
5.The father shall pay to the mother $500 per week by way of interim periodic spousal maintenance, with the first payment to be made to the mother within 3 days of the mother providing evidence from a real estate agent property manager or private landlord that she has secured rental accommodation.
6.The mother retain the sum of $2,000 paid by the father pursuant to Orders made on 21 January 2022, by way of bond with respect to the acquisition of rental accommodation.
7.Both parties are hereby restrained from removing the children’s residence from the City C Local Government Area, New South Wales without the written consent of the other party.
8.The father MR THRANE (“the father”) spend time with the children each alternate weekend from the conclusion of school Friday (or 3:00pm in the event X does not attend school that day) until 5:00pm Sunday, with the paternal grandmother to be present between 9:00pm to 9:00am Friday and Saturday nights.
9.For the purposes of facilitating the father’s time with the children pursuant to Order 8, changeovers shall occur at X’s school on Fridays, if he attends, and at all other times at Suburb D McDonalds.
10.The father is at liberty to telephone, Facetime or otherwise communicate electronically with the children between 6:30pm and 7:30pm each Tuesday and for this purpose:
(a)Communication will be initiated by the father;
(b)The mother will afford the children reasonable privacy for the duration of any such telephone call or other electronic communication; and
(c)No recording of the calls or communication is to be made.
11.All extant applications remain adjourned to the Senior Judicial Registrar’s List on 4 May 2022 at 2:15pm.
12.The parties will forthwith, upon the children’s return to New South Wales, re-enrol X at Suburb D Public School.
13.The father be restrained by injunction from consuming alcohol during the period twelve (12) hours prior to his time with the children and during his time with the children.
14.Neither parent denigrate or speak negatively about the other, their extended family or their partner within the children’s hearing, or allow the children to be or remain in the presence of any third party who is doing so.
15.The mother and father are to communicate with each other (in respect of the children) either:
(a)By using a communication app agreed by them and in default of agreement the Our Family Wizard app; and the cost of such app is to be shared equally by the parties; or
(b)By text message.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment relates to an Application for Review filed on 9 February 2022 by the mother Ms Cowen (“the mother”) regarding interim parenting orders made by a Senior Judicial Registrar on 21 January 2022 (“the interim hearing”). The parenting orders concern the children X born 2019 (“the elder child”) and Y born 2019 (“the younger child”) (collectively “the children”). The mother has one other child from a previous relationship, B born 2011 (“the children’s half-sister”).
At the conclusion of the interim hearing, as relevant to the issues raised upon the Application for Review, the following interim parenting orders were made:
1.That within 21 days of these Orders mother shall cause the children [X] born […] 2015 [“X”] and Y born […] 2019 [“Y”] (collectively referred to as “the children”) to be returned to the [City C] Local Government Area, New South Wales.
…
4.That the father pay to the mother $2000 by way of bond with respect to the acquisition of housing and such be paid upon the mother providing the husbands lawyers with 7 days’ notice of the mother’s intention to return to [Suburb D].
5.That both parties are hereby restrained from removing the children’s residence from the [City C] Local Government Area, New South Wales without the written consent of the other party.
…
7.That the father spend time with the children in the presence of the paternal grandmother each alternate Saturday from 3:30pm to 5:00pm.
8.That changeover shall occur at [Suburb D] McDonalds.
After the mother filed her Application for Review on 9 February 2022, she also sought to stay the above parenting Orders. On 14 February 2022, a Senior Judicial Registrar effectively granted the stay by suspending the orders made on 21 January 2022 and ordering on an interim basis that the children live with mother.
The Application for Review came before me for determination on 18 March 2022 (“the review hearing”) at which time I reserved my judgment.
The Application for Review had been made within the required timeframe of 21 days.[1] The procedure for the review is governed by Rule 14.07 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”) and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim parenting proceedings de novo.
[1] Rule 14.05(2) of the Rules.
The primary issue to be decided in this case if whether Order 1 made by the Senior Judicial Registrar was in the best interests of the children. Whether that order should be set aside will in turn determine what related orders should be made in light of the parties’ opposing contentions.
THE PARTIES’ CASES
The Mother’s Case
At the review hearing, counsel for the mother identified that she sought to review not only orders 1, 5 and 8 made by the Senior Judicial Registrar, but also Orders 4 and 7. As counsel for the father did not oppose amendment to the Application for Review to reflect this, an order was made amending the terms of the application accordingly.
The mother relied upon the following, which were taken as read unopposed:
(a)The mother’s affidavit filed 9 February 2022;
(b)The mother’s affidavit filed 11 March 2022; and
(c)Notice of Risk filed 3 December 2022.
The Outline of Case filed on the mother’s behalf on 18 March 2022 was also relied upon and has been considered together with oral submissions by counsel. In summary, it was argued that there was justification for discharging the interim orders of 21 January 2022, as the issue in the case was not simply about the father’s problematic use of alcohol, but that there were serious considerations of family violence by the father against the mother.
Counsel for the mother emphasised a history of family violence. He referred to the existence of an Apprehended Domestic Violence Order made in 2017, and the mother’s evidence of family violence continuing right up until separation regardless of whether the father was abusing alcohol. It was said that the extent of family violence was the motivating factor for the mother moving to Queensland, where she had friends and family to support her and the children.
I was told by counsel that the children’s half-sister, aged 11 years and not subject to these proceedings, was now living with her father in Queensland and would remain there if the children were ordered to return to New South Wales.[2] This, counsel submitted, was another important consideration, and the Court should be concerned about separating the children from their half-sister.
[2] The affidavit of the mother filed 9 February 2022 states at [15] that the half-sister spends time with her father once every three weeks, however I accept from what I was told by counsel for the mother at the review hearing that she now lives with her father.
Referring to family violence as a central issue, counsel for the mother stated that the 2021 allegations were denied by the father and would not be determined in the New South Wales court for some months. Accordingly, this required an approach which was cautious and protective of the children, meaning that an order requiring the children to return to New South Wales was not in their best interests.
It was submitted that this was not a case of the mother seeking to “cut out” the father from the children’s life and that the mother would support and facilitate electronic communication such as Face Time and block time in Queensland between the father and children, pending the final hearing.
Although family violence was central to the mother’s case, her counsel also argued that the father’s excessive consumption of alcohol was a relevant factor. He said that despite the father’s untested evidence about addressing his alcohol abuse and attending in-house detoxification, at its highest, the father had only been sober for one month and the risk of relapse was real. Particularly as the evidence before the Court was that in the past the longest the father had abstained was four months.
As it is still to be seen if the father can continue to abstain, counsel for the mother submitted this was another good reason to take a cautious and protective approach for the children by not requiring that they return to New South Wales.
It was said that this was not simply a case of the mother picking up and leaving because she wanted to live in Queensland. Rather, the move was motivated by a need to be protective against the father’s excess alcohol consumption and family violence, which exposed the children to physical and psychological harm. The primary considerations under the Family Law Act 1975 (Cth) (“the Act”) warranted protection of the children from that harm over promotion of a meaningful relationship with the father.[3] Counsel referred to JG & BG (1994) 18 Fam LR 255 is this context.
[3] Section 60CC(2A) of the Act.
To the extent that personal protective orders might afford protection of the children if they were to return to New South Wales, counsel said this was not a complete answer to the mother’s case as:
(d)she does not have family and friends in New South Wales; and
(e)she and the children are now well settled with all these supports in Queensland.
It was submitted that it would be disruptive to the children to require them to return at this stage, only to possibly have to return at a later time once final orders are made.
The Court was urged to err on the side of caution, meaning the Senior Judicial Registrar’s orders of 21 January 2022 should be discharged.
The Father’s Case
The following affidavits were read unopposed in the father’s case:
(f)The father’s affidavit filed 9 November 2021;
(g)The father’s affidavit filed 16 March 2022; and
(h)The affidavit of the mother filed 3 December 2021.
The father also relied on his Case Outline dated 17 March 2022 and tendered the following documents into evidence:
·Exhibit F-1: Carbohydrate Deficient Transferrin (“CDT”) pathology result for specimen collected from the father 10 March 2022; and
·Exhibit F-2: Interim Apprehended Domestic Violence Order (“ADVO”) dated 23 September 2021, which identifies the next court date as 7 September 2022.
In relation to Exhibit F-2, counsel for the father submitted that the father had not contested the making of that Interim Apprehended Domestic Violence in September 2021. I queried precisely what this meant and was told that the father consented to the interim order being made without any admission as to the behaviour alleged by the mother. Counsel for the mother agreed that this was an accurate representation of the local court process and what had occurred in this particular matter.
I was directed to the father’s affidavit filed 9 November 2021 at paragraphs [96] to [134], which address the allegations of family violence. In summary, the father denies physical abuse, describes his relationship with the mother as “strong but turbulent over the years”,[4] however he admits that there was verbal abuse in the relationship and one incident where he threw food at the mother.
[4] Affidavit of the father filed 9 November 2021 at [96].
The father’s affidavit evidence alleges that the mother was physically abusive towards him, and counsel especially noted paragraph [116] which deposes as to one incident where the mother injured the father’s hand and foot. Counsel for the father submitted that this shows that the relationship was mutually volatile between the parties. This, he said, warranted proper scrutiny at a later time of the mother’s case that she feared the father and there was need to “get the children out of this situation.”[5]
[5] Affidavit of the mother filed 3 December 2021 at [20].
The father accepts that the parties had discussions in April 2021 and made enquiries about potentially relocating as a family to Queensland, as outlined in his affidavit at [34] onwards. On the father’s evidence, he told the mother on 30 July 2021 that moving was no longer an option he was considering,[6] however the mother continued to pursue the move. Counsel’s submissions focussed on the nature of communications from the mother during this period in 2021, which he submitted did not indicate fear as her plans for relocation reflected a desire on her part for the father to also join her. In particular, reference was made to a text message sent by her on 17 August 2021 which reads as follows:[7]
Please come to Queensland with us. I really think you will love it up there x
[6] Affidavit of the father filed 9 November 2021 at [39].
[7] Affidavit of the father filed 9 November 2021 at [45] and Annexure MT-6.
The authenticity of this text message and the date it was sent were admitted by counsel for the mother. No explanation for it was given in either the mother’s evidence or submissions by her counsel at the hearing.
On the father’s case, the matters referred to at [23] to [26] above, seriously call into question the reasons and urgency of the mother’s relocation. Counsel for the father referred me to Morgan & Miles [2007] FamCA 1230[8] as authority for the proposition that whether a child’s best interests are served by a relocation ought not to be determined on an interim basis except is cases of emergency.
[8] At [55] and [88].
Counsel for the father argued that in this case the Court should make the determination based on the best information, such as a Family Report and tested evidence, rather than on the mother’s unilateral decision. Further, prima facie, this was not a case where the allegation of family violence can be found sufficient to justify a unilateral relocation. He argued that the factual limitations did not allow a determination that the alleged family violence is justification for her interim relocation.
As had been submitted by counsel for the mother, it was conceded that the children have now been in Queensland for six months. However, even in light that the elder child would have commenced school, he submitted that the children are young and so their opportunities to settle in to school and create new friendships has been limited. Thus, this is not a case where the children are “cemented in a community”.
It was submitted that it was to the father’s credit that he acknowledged excessive alcohol use in the past and continues to seek assistance in that respect.[9] Counsel referred me to Exhibit F‑1, which indicates that the results of his recent CDT testing are “below anything equivocal”. Ultimately, the father’s case is that he is committing to the process of rehabilitation from alcohol abuse.
[9] Affidavit of the father filed 9 November 2021 at [135] to [138]; affidavit of the father filed 16 March 2022 at [51].
In response to the mother’s submission that the Court ought to adopt a cautious approach to the father’s recovery from alcohol use, counsel for the father submitted that waiting to see the outcome of the father’s treatment would run the risk that the children further settle in Queensland, amounting to pre-emptive determination of what is in their best interests.
I enquired about evidence before the Court as to the nature and amount of the father’s alcohol consumption, given the nature of the mother’s allegations in this respect. Counsel for the father referred me to a discharge summary attached to the father’s affidavit indicating that the father previously consumed 12 beers and a bottle of wine daily.[10] Counsel added that the Court would require more context as to the impact of this on a long-term consumer.
[10] Affidavit of the father filed 16 March 2022 at Annexure MT-6.
Counsel for the father again reiterated that the father continued to be part of the family unit until the mother left and his alcohol use had not prevented the mother intending for him to relocate with her and the children.
I enquired whether the father had maintained employment during the relationship despite his alcohol consumption. Counsel for the father directed me to the father’s affidavit filed 9 November 2021, which while counsel concedes only addresses the query by implication, indicates that:
·At Part C, the father recorded that his usual occupation is a tradesman; and
·At paragraph [60], the father deposed that he was the primary income earner in the relationship.
In summary, counsel for the father submitted this is not a case where a unilateral interstate relocation was justified on the evidence presented by the mother. Further, that given the protections contained in the Interim Apprehended Domestic Violence Order,[11] the Court ought to be satisfied that the children and mother will be protected from harm.
[11] Exhibit F-2.
I queried where the children would live if I am satisfied that they ought to return to New South Wales. I was advised without contest that the father’s case is that:
(1)The father will vacate the former matrimonial home so that the mother and children may reside there; or
(2)In the alternative, if the mother and the children will live in the City C local government area in a rental property, the orders made 21 January 2022 already provide that the father contribute to the costs of such accommodation.[12]
[12] Orders 3 and 4.
It was common ground that the father had already paid the mother the money required by Order 4, and he sought return of that if the mother and the children were to live at the former matrimonial home.
I enquired about evidence relating to where the father himself would reside in the event that he vacated the home as outlined at [36(1)] and where he proposed to spend time with the children as outlined in his case outline. Counsel agreed that this was an important consideration and conceded that the answer was not directly found in the affidavit material before me.
He sought to remedy this by implication and reliance on the father’s Amended Application for Final Orders filed 18 January 2022, which was not opposed. Counsel submitted that as the father seeks overnight weekend time with the children in the presence of the paternal grandmother, the Court can infer that there is an arrangement whereby the father is living at the paternal grandmother’s house. Counsel for the mother indicated that this provided information was not in issue.
LEGAL PRINCIPLES – INTERIM PARENTING
The decision making pathway referred to in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 applies as this is an interim parenting application being heard de novo.
In summary, on the basis of undisputed evidence or agreed facts the Court is to make an assessment of what is in the best interests of the children, guided by the statutory provisions in sections 60B(1), 60CC, 61DA and 65DAA of the Act, which are relevant to where the children live with and their arrangements to spend time with the parties, pending final determination of the proceedings.
Multi-levelled evaluations of multiple considerations, some of which may be inter-related, must be assessed on a discretionary basis according to uncontentious or agreed facts, cognisant that where the parties’ evidence is in conflict, it has not yet been tested.[13] The parties’ respective proposals need to be assessed to identify what is in the children’s best interests, including having regard to relevant risks of harm to the wellbeing of the children noting limits of the evidence before the Court.[14] The evaluation should give attention to all considerations in section 60CC of the Act.
[13] Goode & Goode [2006] FamCA 1346 at [68]; Deiter & Deiter [2011] FAMCAFC 82 at [61]; Marvel & Marvel [2010] FamCAFC 101 at [121].
[14] Deiter & Deiter [2011] FAMCAFC 82 at [61]; Marvel & Marvel [2010] FamCAFC 101 at [121].
EVALUATION
The mother’s case focussed on the risk assessment required by sections 60CC(2) and 60CC(2A) of the Act. It emphasised the need to discharge the orders of the Senior Judicial Registrar in order to avoid the mother and children needing to return to New South Wales, as this would expose them to physical or psychological harm because of the father’s perpetration of family violence and alcohol abuse.
However, there is qualified limited undisputed evidence or unchallenged facts about such allegations against the father. They are as follows:
·In early 2017 an ADVO was made for six months. The father consented to this order without admission and the parties continued to live together as a family with the children for some four to five years;
·In late 2021 an interim ADVO was made without admission and the making of a final order is being contested by the father;
·The father admits excessive alcohol use, which is detailed in a discharge summary annexed to his affidavit.[15] The father is actively engaged in treatment for this;
·The father threw food at the mother on one occasion and admits to arguments and verbal abuse but in the context of a mutually volatile relationship.[16]
[15] Affidavit of the father filed 16 March 2022 at Annexure MT-6.
[16] Eg affidavit of the father filed 8 November 2021 at [96] to [119].
Importantly, there is dispute about family violence by the father and the mother does not address allegations of violence or abuse by her towards the father. Despite this, the father concedes that what he characterises as mutual conflict and volatility has had some impact on the children.[17]
[17] Affidavit of the father filed 8 November 2021 at[100] to [102].
There is no direct evidence about how the father’s alcohol abuse itself may have impacted on the children.
Relevant to evaluating the best interests of the children, there is unchallenged evidence or concession about the following:
(a)the father has a meaningful and loving relationship with the children and that they miss him.[18] He has spent time with them in Queensland;[19]
(b)The father has been actively involved in the children’s care and activities;[20]
(c)The children were born in New South Wales and the parties made their family life there for several years;[21]
(d)The paternal extended family live in New South Wales and have had a meaningful relationship with the children, particularly the paternal grandmother;[22]
(e)The children had established routines, friends and, in the case of the children’s half-sister, school in New South Wales;
(f)There is no evidence that the father does not meet his obligations to support the children and has supported the family in the past as the mother was the primary carer;[23]
(g)The mother’s move to Queensland has led to the father and paternal family spending less time with the children and this will continue if they do not return to New South Wales;[24] and
(h)Although the parties disagree about the cause of difficulties with phone communications between the father and the children since separation, they both attest to the difficulties occurring.[25]
[18] Affidavit of the father filed 16 March 2022 at [18].
[19] Affidavit of the father filed 16 March 2022 at [24].
[20] Affidavit of the father filed 8 November 2021
[21] Affidavit of the father filed 9 November 2021 at [57]; affidavit of the father filed 16 March 2022 at [7].
[22] Affidavit of the father filed 9 November 2021 at [72] to [73] and [76]
[23] Affidavit of the father filed 9 November 2021 at [60] – [65]
[24] Case Outline filed by the mother on 18 March 2022 at [6]
[25] Affidavit of the father filed 16 March 2022 at [35] to [40]; affidavit of the mother filed 11 March 2022 at [14] to [16], [31] to [32] and [34] to [28].
I need also take into account that the father has an admitted alcohol abuse problem. While counsel for the mother commended the father for taking steps to address it, he warned that it was early days, implying that the Court could not be satisfied the father would not expose the children to neglect or harm and this was a reason for permitting the children to remain in Queensland.
Significantly, in my view, in this case it is unchallenged that the parties had been planning to move to Queensland as a family unit, prior to the mother unilaterally moving with the children.
DETERMINATION
I accept that alleged family violence is an important and serious consideration for the Court. However, as raised with counsel for the mother, there is an absence of typical reports to child safety authorities or documented repeat calls to police in the years between 2017 and 2021, which one would expect in a case where family violence was to the extent requiring the mother to flee unilaterally as she did. The type of evidence tending to show an unacceptable risk and urgent justification for urgent unilateral relocation appears absent, at least presently.
The evidence suggests an alternate and plausible reason for the mother relocating based on her personal preference. The communications between April and September 2021 about a potential family move to Queensland tend to diminish the mother’s current claims about why she moved with the children.
The terms of the text message referred to at [25] above, which was admitted to be authentic and sent by the mother, conveys that the mother wanted the father to move with her and the children as a family unit, ending with “X”. Collectively, this and the matters at [51], raises doubt about the reliability of the allegations against the father which I cannot ignore. To do so would amount to giving inadequate weight and consideration to the father’s denials and excess weight to the mother’s untested evidence.[26]
[26]Deiter & Deiter [2011] FAMCAFC 82 at [61].
I also have concern about the mother’s evidence at [8] and [9] of her affidavit filed 9 February 2022 about the father possessing a weapon. As it follows from [7] stating the mother is fearful of the father, I infer that its purpose was likely to heighten the Court’s concern about the allegations of family violence.
However, the text exchange and photo at Annexure C of the mother’s affidavit, together with the father’s evidence about the weapon being a water blaster, have innocuous connotation. At this stage they tend to be incongruous with genuine fear of the father because he owns a gun, which the father says was a water blaster. Especially so as the mother still conveyed a desire for the father to move with her to Queensland in the text referred to at [25] of these reasons.
Alcohol abuse by the father and risk of harm it presents now and in the future cannot be ignored. It raises issue about the father’s capacity to safely care for the children. However, the father denies he will be unable to care for the children appropriately and there is presently no evidence of the father having harmed the children or neglected them in the past due to intoxication. In addition the father has worked and financially supported the family, which suggests he functions in many facets despite the level of alcohol use he has had.
Further to guard against the low risk of harm that may exist in the future if the father relapses into abuse of alcohol, there will be an order that he is restrained from consuming alcohol for the 12 hours prior to and during periods he is spending time with the children. An order that the father’s time overnight be in the presence of the paternal grandmother will also be protective. The risk from alcohol misuse will also be properly managed, as the father’s proposal is that the children live with the mother.
I accept that the children have to a degree settled in Queensland as this was conceded by the father. However, I agree that they are of an age where a further change can be managed appropriately to limit disruption, and they are returning to familiar circumstances in New South Wales. They may miss their cousins, aunts/uncles and maternal grandmother, but it can be reasonably assumed that visits with the children can be accommodated either in Queensland or New South Wales.
As the children’s half-sister will remain in Queensland, I accept that separation from her is a consideration, however she is currently not living with the children, and they will have other important family and friendships in New South Wales.
At this interim stage there is no compelling reason to prioritise the promotion of the relationships referred to at [57] and [58] over that of the father.
To the extent that the mother states she is fearful of the father, I have questioned whether this is genuine. Regardless, I agree that the existence of the ADVO affords her and the children protection. In addition, there is no evidence that the father’s friends or family have attempted to cause difficulties for or harm to the mother.
The mother claims not to have supports in New South Wales, but she lived there for several years. I doubt that she would not have any friends there. Indeed, she refers to a number of them in her affidavit.[27]
[27] Affidavit of the mother filed 3 December 2021 at [15], [24] and [25].
At this juncture, I am not persuaded that the children need to remain in Queensland to protect them from unacceptable risk of harm said to be posed by the father either from family violence or alcohol abuse. There are other considerations balancing towards it being overall in the children’s best interests to return in the interim to New South Wales to ensure that the father can continue to spend meaningful and frequent time with the children unimpeded by the serious limits of the distance between Queensland and New South Wales.
The ADVO and the parties’ separation, logically, will reduce the opportunity and incidence of conflict which seemingly existed, particularly at the end of the relationship, the nature and extent of which must be properly tested.
If the orders sought Application for Review were granted, it would create a high risk of pre-empting final determination of the issues and sanctioning relocation due to the effluxion of time. This is unwarranted for the reasons outlined at [52] to [56] of these reasons. I accept the submissions of counsel for the father about this.
I do not ignore the concession by the father that the children have been impacted by the conflict between the parties. It is to a degree reassuring that the concession is made as it demonstrates a degree of insight. It is unclear at this juncture whether the mother has the same.
As the mother has conveyed that she does not wish to take up the option of returning to live in the former matrimonial home, Orders 2, 3 and 4 of the Orders made by the Senior Judicial Registrar on 21 January 2022 are not workable and should be discharged.
The Orders made on 14 February 2022 pursuant to the stay application are also to be discharged as the Application for Review has in substance failed.
The mother’s case did not directly reveal whether she would return with the children to the City C Local Government Area of New South Wales, if the Court did not allow her Application for Review. However, it can be inferred that she will do so from the alternate orders she proposes on the final page of her Case Outline filed 18 March 2022. Accordingly, as the mother has been the primary carer to date and the father proposes the children should live with her, there will be an interim order accordingly.
Assuming the mother does return with the children, there will be an order as sought by the father that he pay to the mother the sum of $500 per week by way of interim spousal maintenance. In addition, that the mother retain the sum of $2,000 paid by the father pursuant to the orders made on 21 January 2022, to be used towards a rental bond.
The parties’ evidence referred to at [47](h) raises concern that the children are being exposed to emotional harm from discord around phone calls which have been an important means of continuing the children’s relationship with the father. Phone communications should continue, but there needs to be closer management of those to avoid potential risk of harm from ongoing exposure to conflict during calls.
There will be discharge of irrelevant orders made previously to achieve operative interim orders that provide in substance as follows:
·That the children return to New South Wales;
·That the children live with the mother;
·That the parties are restrained from removing the children’s residence from New South Wales;
·That the father spend alternate weekend time with the children and have communication by phone/face-time or similar;
·Restraints and protections to diminish conflict between the parties and protect the children from potential risks of harm.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 29 April 2022
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