Tokely and Tokely
[2017] FCCA 638
•2 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOKELY & TOKELY | [2017] FCCA 638 |
| Catchwords: FAMILY LAW – Interim arrangements for care of children aged 12 & 10 – nature of interim hearing – allegations of family violence – parties and children previously lived in Adelaide – children have not interacted with father for approximately ten months – children asserted to be estranged from father – unilateral relocation – mother has moved children’s place of residence to Brisbane – application for transfer of proceedings – matter to be considered – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB; 60B; 60CA; 60CC |
| Cases cited: Morgan & Miles [2007] FamCA 1230 U v U (2002) FLC 93-112 McCall & Clark [2009] FLC 93-405 Godfrey v Saunders (2008) FLR 287 |
| Applicant: | MR TOKELY |
| Respondent: | MS TOKELY |
| File Number: | ADC 86 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dillon |
| Solicitors for the Applicant: | Andrew Hill & Co |
| Counsel for the Respondent: | Mr Coates |
| Solicitors for the Respondent: | Parry Coates Family Law |
ORDERS
The children X born (omitted) 2004 and Y born (omitted) 2006 and live with the mother in Brisbane.
Further consideration of the matter is adjourned to 26 July 2017 at 9:30am for directions before Judge Brown in Adelaide.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Regulation 7 practitioner in Brisbane as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 June 2017.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(e)any other matters that the family assessor 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 Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court in Adelaide on 20 July 2017 at 9:15am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $380 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Should the Applicant fail to comply with Order 9 herein the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.
IT IS NOTED that publication of this judgment under the pseudonym Tokely & Tokely is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 86 of 2017
| MR TOKELY |
Applicant
And
| MS TOKELY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case raises complex issues of relocation against a background of allegations of family violence and compromised parent/child relationships. Above all, it turns on issues relating to the prospective benefits likely to be derived by two relatively mature children, of 12 and 10 years respectively, from having a meaningful level of relationship with their father.
The parties to the proceedings are Mr Tokely “the father” and Ms Tokely “the mother”. The children concerned are X, born (omitted) 2004, and Y, born on (omitted) 2006.
At present, X and Y are in the care of their mother in Brisbane, and have been since around December of 2017. Prior to that time, all concerned lived in Adelaide. X and Y attended (omitted) Primary School, and had done since they each started school.
The parties are both originally from the (country omitted) where they met in either 2001 or 2004. They married on (omitted) 2006, and immigrated, to this country in October 2011, settling in Adelaide, although Adelaide was not their first preference of location in Australia.
They finally separated in January of 2015. By way of background, the father is 42, and a (occupation omitted). He has repartnered. The mother is 39. She has (omitted) qualifications, but is currently employed in (occupation omitted).
After separation, it is the father's case that he regularly interacted with both children, and was an involved parent in the children's lives, including regularly caring for them overnight, and attending their various sporting and other extramural activities.
In April 2016, there was an incident between X and his father, which the mother would categorise as a physical assault, resulting in the child sustaining bruising, and which the father would characterise as a bit of rough and tumble play between father and child, to which X overreacted, leading to him having to be physically restrained. What is clear, however, is that following this incident, between April 2016 and onwards, the father has not spent any time whatsoever with either child.
Against this background, between August 2016 and the end of last year, the parties have been engaged in a long process of mediation at Relationships Australia, in which they have attempted to resolve both financial and parenting issues between them.
In the course of these discussions, the mother asserts that the issue of her relocation to Brisbane was raised. It is her position that over a significant period of time, including prior to the family's emigration to this country, there has been a longstanding plan for the family to relocate to Brisbane where the father has relatives.
Against this background, the mother asserts that the father gave her his tacit assent, albeit subject to conditions, that she and the children could move. The main condition was that she would not seek any form of financial support from him in respect of the children.
The father refutes this suggestion, and argues that the mother has acted in poor faith by moving unilaterally to Brisbane, which has robbed him of the opportunity to repair his relationship with the children through some form of therapeutic counselling.
He would categorise the mother's actions as being unilateral and precipitate, and not calculated to be in either X or Y’s best interests, particularly in the longer term, as they will be potentially robbed of the benefits of having an active paternal role model in their lives, and a relationship with a loving and caring father.
Ms Tokely categorises Mr Tokely as being a coercive and controlling person within the definition of family violence provided by section 4AB(1) of the Family Law Act 1975. She asserts that on many occasions, he has overstepped proper boundaries of restraint and has physically assaulted both her and the children by acts which have been calculated to humiliate both her and the children.
In these circumstances, Ms Tokely asserts that it is both readily explicable and understandable why neither child currently wishes to spend any time with the father, particularly as Mr Tokely has apparently elected to withdraw from their lives, and has failed to apologise to the children for his conduct which Ms Tokely would categorise as being unacceptable.
X has been described by his mother as having some special needs, being assessed as having characteristics which fall on the autism spectrum. As such, the mother categorises X as being an especially vulnerable child to family violence.
As I have previously indicated, it is the father's position that following a normal incident of rough and tumble play, X overreacted and he had to physically restrain the child during which the child was unintentionally injured, but not in any significant way.
Following the parties' separation, Ms Tokely has consulted a psychologist in Adelaide, Ms V, who has diagnosed the mother as suffering major depression and anxiety relating to exposure to family violence.
It is the mother's case that against the background of the children's fractured relationship with their father and her view that the father had apparently acquiesced to the move, which she had openly raised with him at mediation, she decided to move to Brisbane in tandem with the start of the school year.
It is her position that she moved for the following reasons. Firstly, she was able to arrange an internal transfer of her employment from Adelaide to Brisbane. Secondly, she believes her depression will be ameliorated by a new environment, and a move to Brisbane, a place which she finds pleasant. Thirdly, the children have paternal relatives in Brisbane, and will benefit from being able to interact regularly with them. Fourthly, Brisbane has more opportunities professionally for her and academically for the children. Finally, she wants to put her life in Adelaide behind her and believes she will be personally happier in Brisbane, which is the destination of her preference in Australia and, indeed, Mr Tokely's preference for a significant period of time.
At the present time, it is Ms Tokely's position that both children have settled well into their new schools and routine in Brisbane. It is her position that she cannot easily return to Adelaide now as she has let her accommodation go in Adelaide and her previous job in the city of Adelaide has been filled. In any event, she doesn't want to go back to Adelaide. She summarises her position and her perspective of the two children in the following paragraphs of affidavit:
“I believe that it is in the best interests of the children to remain in Brisbane to be closer to their paternal family, and believe it would be best for Mr Tokely to also relocate so his relationship can be repaired in an environment the children are comfortable in. I believe that if the children are forced to move back to Adelaide, any chance of healing their relationship with Mr Tokely would be extinguished.”[1]
[1] See mother’s affidavit at paragraphs 129 - 130
Accordingly, it is Ms Tokely's position that, if she is forced, against her wishes to return to Adelaide, it will be counterproductive from Mr Tokely's perspective because the opposition of the children to spending time with their father will solidify, rather than modify. Underpinning her position is the implication that such an outcome will not provide fertile ground for any therapeutic intervention with the children.
Mr Tokely did not waste any time in bringing his application which was filed on 12 January 2017. It is his position that he filed the application as soon as he learned, from secondary sources, that Ms Tokely and the children had relocated.
On both an interim and final basis, he seeks that the parties should have equal shared parental responsibility for the children. He proposes that the children should live with their mother, but that she should provide that residence in Adelaide.
In the jargon of lawyers, that is what is known as a coercive order. Unpacking that concept, it would mean that the Court would make an order compelling Ms Tokely to do something she does not want to do, namely, live in a place that she does not want to live in, as a consequence of the indirect direction of her former husband.
As such, the case raises difficult legal issues. In general terms, the High Court has held that citizens in this country have an implied right to live and move wherever they wish. Australia is a free country, and its citizens are free to pursue their occupations and other interests wherever they wish.
On the other hand, as a consequence of principles contained in the Family Law Act 1975, particularly at section 60B, children have an entitlement to have a proper level of relationship with their parents. In cases involving a relocation element, these principles come into conflict.
The High Court has held that in resolving these conflicts, the Court must bear in mind that the overriding consideration is the best interests of the child or children concerned. As I say, Mr Tokely does not seek that the children live with him. Essentially, he is not putting himself forward as the children's principal provider of care at this stage. Rather, he seeks to spend regular periods of time with the children at weekends and for half of the school holidays.
In her response to these proceedings, filed on 10 February 2017, the mother seeks a simple order that the children live with her in Brisbane and that on an interim basis, she seeks that the children communicate and spend time with their father as the parties agree from time to time.
At this stage, given the fractured nature of the relationship between the two children and their father, she proposes that there be some sort of professional intervention to determine what is currently the nature of the relationship between the father and the children, particularly to see what is the best means by which to repair it. Part of that process would involve a canvassing of the children's views.
It is Ms Tokely's position that the obvious place for that to occur would be in Brisbane. Against this background, she seeks the transfer of the proceedings to the Registry of the Court in Brisbane. The father asserts that much of the mother's evidence is either exaggerated or fabricated.
It is his case that he was perplexed when the mother withheld the children from him in April 2016 after the occurrence of what he would characterise as a minor incident. He denies that he is or was the proponent of family violence against the mother or has ever overpowered or degraded the children.
As I indicated during the interim hearing, I am not ordinarily entitled to be privy to what is discussed at mediation between parties in proceedings before the Court. There is a public policy consideration which dictates that such communication should be kept confidential so that parties are free to discuss issues knowing that what they say at mediation does not later appear in the Court orders. The public policy being that it is usually better for parents and children to resolve issues in dispute between them consensually, without recourse to the expensive and emotionally draining court proceedings.
However, in this case, to some extent both parties have overridden that confidence, and have provided me with text messages passing between them which have been generated collaterally with that process of mediation. The mother places particular emphasis on the text message sent to her by the father on 14 November 2016, and that message is set out at paragraph 95 of her affidavit. It reads as follows:
“Ms Tokely, I have just had a conversation with Ms J (she is the mediator) and I think with the current situation and the speed you want to move, I would like to make a suggestion which is if you are prepared to sign off that we have no further contact, either between us or the boys, and if you do not want to have anything from me, in terms of time or money or anything at all, I would be prepared to finalise your plans on 5 December. I would rather allow you to be free to make your move than get caught up in a long drawn-out process. I hope you will consider this as I do not want to see you upset and I do not want to get the boys upset, and I do not see this being resolved any time soon. I would rather be out of it and at peace. Sorry for the long text.”[2]
[2] See father’s affidavit at paragraph 69
The father accepts, I think, that this message was sent, but it is his position that it was overridden by a subsequent text which was sent shortly afterwards. It reads as follows:
“Ms Tokely, I have an important meeting on the 5th so can only stay until 3.15 pm. To make this easier on the day, I want to discuss how and when I get to see the boys. I thought about the issue, and have realised I was going to be blindsided into walking away from my family. This is not going to happen. I wish we could talk this out, but through the mediation process it will take ages. This process is what you want, so we will go for this for now.”
To which he says he received a reply:
“Okay. I will see you in mediation.”
The nature of an interim hearing
At this point, it is important, I think, that I attempt to describe to the parties the nature of an interim hearing. As the parties will be aware at this stage, I have had limited time to evaluate the evidence which is available to me. It is highly probable, I think, that both parties have prepared their affidavit material relatively quickly against a background of mutual urgency. At this stage of the proceedings, I have not had an opportunity to see either of the parties in the witness box being cross‑examined.
As a consequence, at this stage I am not in a position to make findings about who of the parties is truthful or otherwise and whether their evidence is reliable or exaggerated. At this point, I am simply not in a position to make findings of fact about the issues which are in dispute between the parties.
The issues in dispute can be relatively easily summarised. They turn on the nature of the parties' relationship with one another. Firstly, was it one that was characterised by family violence in which the father coerced and controlled the mother? Secondly, was there an agreement between them for Ms Tokely and the children to move to Brisbane at the start of the school year? I simply cannot resolve those issues at this stage.
However, there does seem to be a lack of precision in terms of what was or was not agreed in the context of what seem to have been emotionally-laden and protracted mediation proceedings. Certainly, there is no obvious and clear imprimatur that Ms Tokely could move to Brisbane. In many ways, it was with the benefit of hindsight, likely to be characterised as imprudent to make a significant move, without all the i's and t's being respectively dotted and crossed.
What does seem to be clear, however - and it is, in my view, significant for reasons to which I will come in due course - is that for a significant period of time, the relationship between the two children and their father has been fractured. Over this period of time, which is now approaching 12 months, there have been no concrete steps taken to repair that relationship. Rather, Mr Tokely, for reasons about which I can only conjecture, has chosen to take a wait and see approach.
The applicable legal principles
I now turn to outlining the applicable legal principles I must apply to the resolution of this difficult case. I regret that it will take me some time to outline these principles. I also apologise in advance to each of the parties concerned and their legal advisors that it will take me some time to deliver these orally-delivered reasons. Regrettably because of pressures of time, I have not had the time to reduce the reasons into writing.
At the outset, it is noted that although the nature of the hearing is different at the interim stage as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting order in relation to a child, the Court must regard the best interests of that child as the paramount or most important consideration (see Family Law Act 1975 at section 60CA).
The matters which the Court must take into account in deciding how a child's best interests are to be served are set out specifically in list form in section 60CC. That section creates two classes of consideration which are relevant primary considerations, and a longer list of additional considerations.
Generally speaking, the Court should give great weight to the primary considerations, which are closely tied to the overall objects and principles of the Family Law Act 1975 set out in section 60B.
I have already alluded to some of those objects and principles which, relevantly here, include
·ensuring that children have the benefit of both of their parents having a meaningful involvement in the lives of the children;
·children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together;
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.
Against this background, the two primary considerations are as follows:
a)The benefits to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect a child from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the Court is now directed, in applying the primary considerations, to give greater weight to protective concerns.
It is the underpinning of the father's case that he will not have a meaningful level of relationship with X and Y if he continues to live in Adelaide and they continue to live in Brisbane. On the other hand, it is the underpinning of Ms Tokely's case that at the present time, the children do not have a meaningful level of relationship with their father, and to compel their return to Adelaide will retard rather than facilitate that relationship being restored.
Other specific criteria relating to how the Court is directed to consider how the best interests of any children concerned may be served are set out in section 60CC(3). There are 14 such criteria which are categorised as being additional considerations.
Depending on the circumstances of the case concerned, one or more of these factors may come to the fore. In this particular case, amongst the additional considerations which are likely to be germane are:
·any views expressed by the children concerned, and any factors which impact upon those views;
·the nature of the relationship of the children with each of the child's parents; and
·the practical difficulty and expense of a child spending time with, and communicating with a parent, and whether that difficulty will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
In this context, it is Ms Tokely's position that both children are expressing a strong preference not to spend time with their father and remain in Brisbane. Underpinning this assertion is her submission that these children are mature children, and have made that decision for valid reasons independent of any influence from her. It is also her case that the children's most significant relationship is the one they have with her and, as I have already indicated, that their relationship with their father is under pressure at present.
For obvious reasons, if the children remain in Brisbane and Mr Tokely remains in Adelaide, there will be logistic difficulties in him maintaining any form of relationship with them. It is his position, as I understand it, that as a consequence of having repartnered, he cannot leave Adelaide. He refutes any suggestion that he can easily get work in Brisbane as a (occupation omitted) which Ms Tokely has asserted is something which is open to him.
It is also Ms Tokely's case that both children have been exposed to family violence in the sense envisaged by the legislation. She would categorise the incident where X was bruised as being an episode of family violence.
For obvious reasons, relocation has implications for the quality and intimacy of parental relationships between a child and the parent left behind. Because of those issues, 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 unilateral development, which significant alters the relationship of the child concerned in regard to one or other of his or her parents.[3]
[3] See Morgan & Miles [2007] FamCA 1230
Australia is a very large country. As a consequence, the Court is reticent to condone unilateral action in respect of a child or children involving large-scale continental movements of children throughout this country. Kirby J in AMS has further said that every relocation case is unique and, as such, requires careful and delicate analysis. [4]
[4] AMS v AIF; AIF v AMS (1999) FLC 92-852
The applicable legislation also encourages parents to share responsibility for their children's care. As such, it is antithetical to such a credo that one parent should be able to take significant action in respect of where a child lives without the approval of the other parent, or if that approval cannot be obtained without the direction of the Court.
For that reason, the Full Court has indicated that Courts, at first instance, should not easily authorise unilateral relocations unless there are special circumstances of emergency or difficulty. However, as with all cases involving relocation, the ultimate determinant must be the best interests of the child concerned.
Hayne J in U & U[5] provided a useful synthesis of the concepts which must be considered in respect of relocation issues which Warnick J described as "an imbroglio of competing considerations". He said as follows:
“It is now recognised as self evidently true that apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents, and the right of contact on a regular basis with both parents are said to be principles underlying the object of Part VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent, the father, cannot move and that the mother must, in every case, subordinate her ambitions and wishes not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, and not the interests or needs of the parent, let alone the interests of one of them.”
[5] U v U (2002) FLC 93-112
In this case, unpacking the mother's case, it is her position that she is the unchallenged custodian of both children. Accordingly, how she is faring both emotionally and financially is of paramount relevance to the needs of the two children concerned and so central to their best interests. It is her case that she cannot return easily to Adelaide, and if she does so, her depression will recur, which would be potentially disastrous for X and Y, given her status as the children’s undisputed primary carer.
In addition, she will be financially disadvantaged and that will, of itself, be detrimental to the best interests of the two children concerned. It is her position that it is fundamentally untenable and, perhaps open to be characterised as sexist, that she should sublimate her legitimate interests to the interests of the father and be compelled to move back to Adelaide against her wishes because Mr Tokely himself says that he cannot move to Brisbane.
As I have said, the case fundamentally turns on the concept of "meaningful relationship". That was a concept that was analysed by Brown J in Mazorski & Albright[6] and in the subsequent case McCall & Clark.[7] In Mazorski, Brown J spoke in the following terms:
"Meaningful," she said, was a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility, and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[6] Mazorski & Albright [2007] 37 FamLR 518
[7] McCall & Clark [2009] FLC 93-405
A relationship to be "meaningful" has to add something to the lives of the children concerned. It must benefit them. At this stage, the children are not likely to have any form of meaningful relationship with their father whatsoever. They do not spend time or otherwise engage with him. They have not engaged with him since April of 2016.
This was the concept that the Full Court analysed in McCall. In McCall, the Full Court discussed what it called "the prospective approach" to the interpretation of section 60CC(2)(a). In this sense, the Court said as follows:
“The legislation requires a Court to consider the benefits to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made.”
That was characterised as the "present relationship approach". However, it was also incumbent that:
“The Court should consider and weigh the evidence at the date of hearing, and determine how, if it is in a child's best interests, orders can be framed to ensure that the particular child has a meaningful relationship with both parents…”
This may be characterised as “the prospective relationship approach”.
If I adopt the present relationship approach, there would appear to be no meaningful level of relationship currently between the children and their father. In this context, the father, by necessary implication, urges me to take the prospective approach. Indeed, so does the mother. The question, therefore, is where is the best venue and what are the best mechanisms to adopt in order to facilitate the prospective approach, so far as the children’s relationship with their father is concerned?
The father asserts it is by coercively compelling the mother to return to Adelaide so that, in the fullness of time, a therapeutic approach can be adopted. The mother's position is that that, necessarily, is putting the cart before the horse, and that it would be imprudent for the Court to adopt that approach without at least seeing what prospect it has of being successfully implemented, particularly, as from her perspective, to compel her to return to Adelaide will have potentially dire consequences for the two children concerned.
In addition, by necessary implication, I think it is the mother's position that the Court should not fall into the error of approaching the issue on purely a quantitative basis. It is her position, I think, that qualitatively the relationship can be improved in time. In Godfrey & Sanders, Kay J said as follows in respect of what is meant by "a meaningful parental relationship" in a relocation context:
“Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”[8]
[8] Godfrey v Saunders (2008) FLR 287
Conclusions
In my view, this is a difficult and complex case. I accept that there are elements of unilaterality in Ms Tokely's behaviour. I must be careful not to easily condone that action which, in public policy terms, has implications for other parents who may be considering moving a child or children far away from another parent. I know from my own experience as a judge of this Court, that relocation cases, particularly unilateral relocation cases, precipitate very powerful and sometimes bitter emotions in the parents concerned.
On the other hand, I must consider the risks to these children of compelling their mother's unwilling return to Adelaide against the background of her diagnosed depression, and the difficulties she will experience on her return, particularly in a context where it is common ground that there is, at present, no relationship between the two boys and their father and significantly no proposal, other than in amorphous terms, as to how that relationship should be repaired. Unilateral actions often create unpredictable consequences. That is so, also, of the Court's processes.
I have to be careful not to punish Ms Tokely for an action which I think, quite possibly, was precipitate and ill-considered, and in so doing create consequences for the two boys which may be unpredictable in their outcome. I also have to be careful about the potential for these two children to lose a relationship with their father which, in the longer term, may be significantly to their detriment. Bearing all these factors in mind, I have come to the conclusion that it is appropriate that I adopt a cautious approach.
I am going to adjourn the proceedings for approximately three months, and in that period, order that a family report be prepared in the Brisbane Registry of the Court. Whether Mr Tokely attends Brisbane for that report is a matter for him. I would envisage that the report, of course, would encompass observed interaction between the two boys and their father, and would provide some guidance as to the best mechanisms for the children to resume, if at all possible, some form of relationship with the father.
Although I cannot, of course, be definitely certain, I cannot reject Ms Tokely's position that to compel her return to Adelaide, against her wishes, will be counterproductive to there being any healing of the children's apparent attitude towards their father. In this context, it is, I think, significant that these proceedings were not initiated earlier by Mr Tokely, and have occurred in reactive form to the mother's actions. So against that background, I propose making the orders at the commencement of these reasons for judgment.
I should point out that the proceedings have also included property proceedings. At this juncture, for obvious reasons, neither party has concentrated on this aspect of the case. If the parties' wish, I will appoint a conciliation conference date but, otherwise, I will leave that aspect of the case in abeyance.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 5 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Costs
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Remedies
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