TUCKER & TUCKER
[2012] FMCAfam 411
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TUCKER & TUCKER | [2012] FMCAfam 411 |
| FAMILY LAW – Children – parenting – interim orders – relocation – whether unacceptable risk of abuse – mental health issues – misuse of alcohol. PRACTICE & PROCEDURE – Affidavit – where applicant sought leave to rely on affidavit handed up at the hearing – where leave refused. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 65H, 68L |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Jaeger and Jaeger (1994) FLC 92-492 Johnson & Page [2007] FamCA 1235: (2007) FLC 93-344 Re K (1994) 17 Fam LR 537; FLC 92-461 Mallahan & Mallahan [2010] FamCA 631 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 |
| Applicant: | MR TUCKER |
| Respondent: | MS TUCKER |
| File Number: | SYC 7316 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 April 2012 |
| Date of Last Submission: | 24 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| Solicitors for the Applicant: | David H.Cohen & Co |
| Counsel for the Respondent: | Mr Leggat SC |
| Solicitors for the Respondent: | Frankham Family Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children of the marriage [Y] born [in] 2002 and [Z] born [in] 2006.
The children [Y] and [Z] are to live with the mother.
The mother is permitted to relocate the residence of the children [Y] and [Z] to the Newcastle area.
The children are to spend time with the father as follows:
(a)Each alternate weekend during the school term from 10.00 am to 4.00 pm on the Saturday and from 10.00 am to 4.00 pm on the Sunday commencing on Saturday 5 May 2012;
(b)Each weekend during the school holidays from 10.00 am to 4.00 pm on the Saturday and from 10.00 am to 4.00 pm on the Sunday;
(c)From 10.00 am to 4.00 pm on Father’s Day;
(d)From 10.00 am to 4.00 pm on the Father’s birthday being [date omitted] 2012; and
(e)From 12 noon to 4.00 pm on the birthday of the child [Y] being [date omitted] 2012.
For the purposes of Orders (4)(a) and (b) the father is to collect the children from the mother’s accommodation in Sydney at the commencement of the time and return the children to the mother’s accommodation in Sydney at the conclusion of the children’s time with the father.
For the purposes of Orders (4)(c), (d) and (e) the father is to collect the children from the mother’s residence in Newcastle at the beginning of the time and return the children to the mother’s residence in Newcastle at the conclusion of the children’s time with the father..
Order (4) above is conditional on the father complying with the following Orders:
(a)The father is restrained from drinking alcohol during the time that the children spend with him and for a period of twelve (12) hours beforehand; and
(b)The father is restrained from accessing or viewing any pornographic material during the time that the children spend with him and for a period of twelve (12) hours beforehand.
The interests of the children [Y] born [in] 2002 and [Z] born [in] 2006 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange the representation of the children by an appropriately qualified lawyer.
The parties are to forward to Legal Aid New South Wales for the use of the independent children’s lawyer when appointed copies of all applications, responses, affidavits and other relevant documents within fourteen (14) days of the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Tucker & Tucker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7316 of 2011
| MR TUCKER |
Applicant
And
| MS TUCKER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders by the father of two girls, [Y], aged nine, and [Z], aged five. The children currently live with their mother.
The father seeks interim orders restraining the mother from relocating the children’s residence from the Sydney Metropolitan Area to Newcastle.
He also seeks orders that the children live with him on alternate weekends and on the Sunday afternoon of the off week, provided that the mother chooses not to relocate herself to Newcastle. However, if she does, he seeks an order that the children should live with him.
The mother opposes these proposed orders. She seeks orders that the children should live with her in Newcastle and spend supervised time with their father. She also seeks injunctions against the father drinking alcohol or accessing or viewing pornographic material before or during the times when the children are with him.
Background
The parties were married [in] 1996.
The father is a [omitted] by profession. He was born [in] 1969.
The mother is a [occupation omitted] who was born [in] 1969.
There are four children of the marriage, two of whom are now adults.
The two adult children were adopted by the parties when they were living in Papua New Guinea in 2002. they are:
a)[W] (known as [W]), born [in] 1990; and
b)[X] (known as [X]), born [in] 1993.
[W] is now 21 years old and [X] is now aged 19 years. As they are both over the age of 18 years, the Court must not make a parenting order in respect of either one of them (Family Law Act, subsection 65H(1)).
The parties’ daughter [Y] was born [in] 2002.
The parties’ daughter [Z] was born [in] 2006.
On 19 February 2007 the father sexually assaulted the parties’ daughter [X], who was then aged 14 years. The parties separated the next day when the father left the matrimonial home.
Later that same month the father was admitted to the [omitted] Hospital for drug and alcohol rehabilitation. He remained as an inpatient for five weeks.
The assault on the child [X] was reported to the Joint Investigation Response Team (JIRT) on 23 April 2007.
On 11 May 2007 a Provisional Apprehended Violence Order was obtained by the Police against the father, naming the child as the person in need of protection. The order was subsequently extended to November 2007.
The father was again hospitalised in August 2007. He remained in hospital for a period of nine weeks, suffering from depression.
In November 2007 the father was admitted to the [omitted] Psychiatric Unit, having been scheduled after a self-harm incident. He was then transferred to [omitted] Hospital.
The father did not work at his profession from April 2007 until February 2011, when he recommenced working as a [omitted].
The father moved back into the matrimonial home in January 2009 and left again in April of that year.
The father commenced working at a [omitted], near Wollongong, but retained his rental accommodation in E. He rented a town house in Wollongong and lives there during the week, returning to Sydney on weekends.
The mother moved to Newcastle with the girls [Y] and [Z] in November 2011. She commenced living with the children in her brother’s residence in [omitted] and commenced work as a [omitted] on 6 February 2012.
The children commenced attending school at the [omitted] Public School at the beginning of the first school term in 2012.
The father commenced proceedings in this Court by filing an Application and supporting affidavit on 30 November 2011.
The mother filed a Response and an affidavit on 24 February 2012.
On 26 March 2012 the parties were ordered to attend a Child Dispute Conference with a Family Consultant. They attended the conference on 28 March. The Family Consultant reported that they did not agree on any issue.
Orders Sought
The father in his Application seeks the following interim orders (summarised):
a)that the children [Y] and [Z] live with the mother;
b)that the parties have shared parental responsibility for the children;
c)that the children live with the father:
i)each fortnight from 3:30 pm on the Friday until before school on the Monday;
ii)from 1:00 pm to 6:00 pm on the Sunday of the other week; and
iii)that the father is to pick the children up from the mother’s home at the commencement of the time and the mother is to collect the children from the father’s home at the conclusion of the time with him.
d)That if the mother relocates to Newcastle:
i)the children are to live with the father; and
ii)the children should spend time with the mother as the parties agree.
In her Response the mother seeks the following interim orders (summarised):
a)that the children should live with her;
b)that the parties should have equal shared parental responsibility for the children;
c)that the father should spend supervised time with the children as follows:
i)for 3 hours on Saturday and 3 hours on Sunday each alternate weekend as agreed and failing agreement between 3.00 pm and 6.00 pm;
ii)during each school holiday for 4 periods of supervised time of 3 hours’ duration, comprising two 3 hour sessions in Sydney and two 3 hour sessions in Newcastle;
iii)that the supervised time take place alternately in Sydney and Newcastle;
iv)for the purpose of supervising the father’s time with the children the parties should agree on a supervisor and failing agreement the supervisor should be appointed by the mother.
d)The father and the supervisor should collect the children from the mother’s residence in Newcastle or her accommodation in Sydney and the mother should collect the children at the conclusion of the supervised period.
e)That the father be restrained from drinking alcohol for 12 hours prior to collecting the children and during the time that he is with the children or from being in any way affected by alcohol whilst the children are spending time with him.
f)That the father is restrained from accessing or viewing any pornographic material for 12 hours prior to his time with the children or during that time.
Evidence
The father relied on his affidavits of 30 November 2011 and 26 March 2012. A further affidavit, recently sworn, was sought to be tendered at the hearing, although senior counsel for the mother objected to leave being granted to rely upon it. After reading the affidavit to ascertain its relevance and its importance in deciding what orders would be in the best interests of the children (see Jaeger and Jaeger[1]), I formed the view that the contents of the affidavit were not of sufficient relevance or importance and refused leave to rely upon it.
[1] (1994) FLC 92-492
The Court sets a timetable for the filing of affidavits before an interim hearing which should normally be followed by the parties. As Fogarty J (with whom Finn and McCall JJ agreed) said:
The Court has gone to a great deal of trouble in recent times to set out a clear regimen of procedures relating to the preparation of cases which go on for trial and one of the reasons for that is to ensure that the case runs through smoothly, that there is not trial by ambush or, alternatively, that the case is not disrupted by adjournments whilst parties call evidence which was not previously anticipated.[2]
[2] (2004) 92-492 at 81,148
However, his Honour went to say that the rules of procedure are important but the ultimate issue is the welfare of the child. Thus, the Court should consider the importance of the affidavit evidence sought to be tendered at that late stage to decide whether that evidence could have had an effect on the ultimate outcome.
Accordingly, I read the contents of the affidavit sought to be relied on and formed the view that the material contained within it did not have the necessary importance to have an effect on the ultimate outcome. In the circumstances, leave to rely on the affidavit was refused.
In his affidavit of 30 November 2011 the father deposed that the parties separated in April 2007 when he was admitted to [omitted] Hospital for treatment of his “alcohol and drug problems”.[3]
[3] Affidavit of Mr Tucker 30.11.2011 at paragraph [5]
The father claimed that since separation he had maintained a strong relationship with his daughters, saying:
The Respondent Mother has until now encouraged the children to maintain their relationship with me by ensuring that I was able to spend substantial time with the children since the separation which included overnight stays at my home.[4]
[4] Ibid at [9]
He claimed that the mother had not previously considered him to be a risk to the children but on or about 24 September 2011, when the mother and all four children stayed overnight at his residence in [omitted], the mother insisted on staying over because she considered him as a “danger”.
The father also claimed that the children have told him they do not want to relocate to Newcastle and expressed the view that the proposed move had “greatly unsettled” the two girls. He claimed that:
On 3 September 2011, the Respondent Mother has allowed the two children [Y] and [Z] to stay overnight with me.[5]
[5] Ibid at [28]
The father deposed that the mother only stopped the children staying overnight with him after the parties disagreed about the mother’s proposal to move to Newcastle. He denies that he poses a danger to the children, saying that he has had, since 2007, regular contact with and support from his general practitioner and various psychologists.
The father described his working arrangements during the week, stating that his primary residence remained in E and he only stayed in Wollongong during the week whilst he worked there.
In his affidavit of 26 March 2012, the father stated that he had been treated by a psychiatrist, Dr B, until October 2009, and had been seeing another psychiatrist, Dr R, since then. He to his affidavit a copy of a report from Dr R dated 25 March 2012.
In his report, Dr R expressed the view that the father had been suffering from a Bipolar Affective Disorder Type II, which was first diagnosed five to seven years previously. However:
…he may have been experiencing symptoms for a much longer period of time complicated by a history of alcohol abuse and in the past Benzodiazepine misuse.[6]
[6] Affidavit of Mr Tucker 26.3.2012 Annexure “B”
Dr R had been asked by the father’s solicitor to comment as to whether he presented a risk to the children. He replied:
4.1 As I noted in my preamble I have not specifically assessed Mr Tucker’s risk as it pertains to children. What I can state is that whilst he is compliant with medication and abstinent from alcohol any risk whatsoever that may be perceived to be posed towards his children would be significantly reduced/negligible.
4.2 I cannot comment further except to state that his mental health conditions currently do not contribute any risk towards his children.[7]
[7] Affidavit of Mr Tucker 26.3.2012 Annexure “B”
The father also annexed to his affidavit a copy of his Voluntary Agreement to Conditions of Registration, a document that he signed after attending an inquiry conducted by the Impaired Registrants Panel of the [omitted] Council of New South Wales on 1 December 2011. He also annexed a copy of a letter dated 7 December 2011 from the Executive Officer of the [omitted] Council, setting out the conditions that had been placed on his registration. They are:
1. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
2. To take any medication prescribed by his treating practitioners.
3. To abstain completely from the consumption of alcohol.
4. To attend for twice weekly urine alcohol (Ethyl Glucuronide) (EtG) testing in strict accordance with the Council’s protocol. Results of EtG testing are to be forwarded to the Council appointed and treating practitioners and to the Council. He understands that such testing will be at his expense.
5. To attend for review by the Council Appointed Psychiatrist in five months or as otherwise directed by the Council, at the Council’s expense.
6. To attend a Review Interview at the Council in six months or as otherwise directed by the Council.[8]
[8] Ibid
The father annexed copies of test results from 18 January to 8 March 2012, all negative.
The father also tendered a letter dated 30 January 2012 from the Principal of [omitted] Public School, where the child [Y] had previously attended, guaranteeing her and her sister a place at the school in 2012.
The mother relied on her affidavits of 24 February and 18 April 2012.
The mother in her first affidavit took issue with many of the father’s statements in his earlier affidavit, including denying the father’s statement that she is the natural mother of the older children [W] and [X], saying:
I am the adoptive mother of [W] and [X].[9]
[9] Affidavit of Ms Tucker 24.2.2012 at paragraph [10]
The mother denies that the father had been having unsupervised time with the children. In particular, she denied the father’s assertion that on 3 September 2011 she had permitted the two children to stay overnight with the father, saying:
On 3 September 2011, the children were at home with me.[10]
[10] Ibid at [37]
The mother stated in her affidavit that there are four reasons why she considers the father to be a danger to the children:
First, his sexual assault. Second, his use of pornography. Third his alcoholism and drug use and fourth his anger issues. Fourth (sic), mental instability or serious mental illness.[11]
[11] Ibid at [19]
It is the mother’s evidence that she and the father had discussed her proposed move to Newcastle during 2011 and he did not tell her that he objected to it until the parties attended mediation on 27 September 2011.
The mother deposed that she wished to move to Newcastle because she has strong family support in the Newcastle from her parents and her three brothers, two of whom live in the area. The mother is employed by [omitted].
The mother annexed to her affidavit copies of the following reports:
a)Psychologist Report dated 12 October 2007 from Dr L;
b)Clinical Psychological Report dated 29 October 2007 from Ms S, Clinical Psychologist.
The mother stated in her affidavit that she had consulted Ms S in November 2011.
At the consultation Ms S advised me that there was a risk to the children anytime, whether in the day or the night, and that risk increases with one to one contact. Ms S’s advice was contrary to the belief I had held up until that time.[12]
[12] Affidavit of Ms Tucker 24.2.2012 at [118]
In her affidavit of 18 April 2012, the mother set out a list of dates when the children had spent time with their father between 19 December 2011 and 25 March 2012. On each occasions the children were accompanied by various adults, including the mother herself and, between 19 December and 26 February, the children’s paternal grandmother.
Submissions
The father’s solicitor, Mr Cohen, submitted that the father was now fully able to function as a [occupation omitted] and had been complying with the conditions imposed on him. He referred to the report by Dr L annexed to the mother’s affidavit and submitted that the advice the mother had received from Ms S was flawed, as she had not seen the father at all.
He referred the Court to the decisions of Boland J in Murphy & Miles[13] and the Full Court of the Family Court in Goode v Goode.[14]
[13] [2007] FamCA 1230; (2007) FLC 93-343
[14] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
It was submitted on behalf of the father that the reports from Dr R and Dr L supported the proposition that the father was no risk to the children. If the mother were to stay in Newcastle, the father would look after the children. He would move to [G] and go into practice in Sydney.
Senior Counsel for the mother submitted that an important starting point was that the father himself had moved away from Sydney to work in the Wollongong area, knowing that the mother proposed to move to Newcastle.
Further, he submitted that the mother had strong family support in the Newcastle area whilst the father, by comparison, only had access to a studio apartment in [G]. There was a difficulty for the father if he were to live in [G] and send the children to school in [omitted].
The main issue was the risk to the children, he submitted, referring to the decision in Johnson & Page[15]. There was an accumulation of five factors which would lead to a finding of unacceptable risk to the children if the father were to have unsupervised time with them:
a)the father’s admitted sexual assault on the older girl [X];
b)the father’s accessing pornography in breach of an agreement not to;
c)the father’s ongoing alcohol use with little insight into the importance of remaining alcohol-free;
d)the father’s anger issues; and
e)the father’s mental illness, which included his being scheduled in 2007 after a suicide attempt.
[15] [2007] FamCA 1235; (2007) FLC 93-344.
The Relevant Law
This is an interim decision concerning the father’s opposition to the mother’s proposal to relocate from Sydney to Newcastle with the children.
In Mallahan & Mallahan[16] Murphy J said of relocation cases:
[16] [2010] FamCA 631
In my view, it remains the case that, as I said, in the earlier decisions referred to:
· A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.[17]
[17] [2010] FamCA 631 at [27]
The decision of Boland J in Morgan & Miles[18] is, to my mind, particularly helpful when a court is dealing with the question of relocation on an interim basis. Her Honour stated at [80] and [81]:
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed parent’s freedom of movement,
[18] supra
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining issues in dispute against those relevant s.60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.[19]
[19] [2007] FamCA 1230; (2007) FLC 93-343 at [80]-[81]
It is the case that when making a parenting order, the Court must regard the best interests of the children concerned as the paramount consideration (Family Law Act, s.60CA).
The Court determines what is in a child’s best interests by considering the matters contained in subsections 60CC(2) and 60CC(3) of the Act.
When making a parenting order, the Court is required by s.61DA to apply a presumption that it is in the best interests of the children concerned for their parents to have equal shared parental responsibility for them.
Where the Court makes an order that children’s parents are to have equal shared parental responsibility for them, s.65 DAA of the Act requires the Court to consider whether the children spending equal time with each parent is both in their best interests and reasonably practicable. If the Court does not make such an order, it must consider whether the children spending substantial and significant time with each parent is both in their best interests and reasonably practicable (see s.65DAA(2)).
I have considered all of the above matters.
Conclusions
It is well established that in an interim hearing where the Court usually does not hear oral evidence, it is often difficult if not impossible to make definitive findings of fact where there is conflicting evidence. It was held in Goode v Goode[20]:
For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry will be “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[21]
[20] supra
[21] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 at [68]
The Court is not in a position to make a finding of fact about issues where the parties’ affidavit evidence is totally contradictory, including:
a)whether or not the Respondent mother is the natural mother of the children [X] and [W], as the father deposes, or the adoptive mother, as she claims;
b)whether or not the children [Y] and [Z] have spent unsupervised time with the father; or
c)whether or not the father agreed to the mother relocating to Newcastle in 2011.
However, there are some aspects of the father’s affidavit evidence which appear to be contradictory.
First, there is a discrepancy between the dates given by the father as to when he resumed working as a [omitted]. In his affidavit of 30 November 2011 the father refers to having resumed work as a [omitted] in 2011 (see at [15], [32] and [37]-[39]).
However, in his affidavit of 26 March 2012 the father deposes to not having resumed his work as a [omitted] until “in or about early March 2012”.[22]
[22] Affidavit of Mr Tucker 26.3.2012 at [4] and [5]
This discrepancy calls for an explanation.
Similarly, in both of his affidavits the father gives his residential address as Property E. However, at paragraph [47] of his affidavit of 30 November 2011 the father states:
I am concurrently (sic) residing in a 3 bedroom townhouse in [G] that will adequately cater for my two younger children, [Y] & [Z], to stay overnight with me.[23]
[23] Affidavit of Mr Tucker 30.11.2011 at [47]
If that is the case, why does the father continue in his later affidavit to give his address in Sydney as Property E?
Essentially, there are three proposals before the Court:
a)The father’s proposal that the mother should remain living in Sydney, the children continue to live with her and spend time with their father;
b)The father’s alternative proposal that the mother continues to live and work in Newcastle but the children live with him and spend time with their mother; and
c)The mother’s proposal that she and the children live in Newcastle and the children spend supervised time with their father.
The best interests of the children remain the paramount consideration. The primary considerations are set out in s.60CC(2).
Paragraph 60CC(2)(a) refers to the benefit to the child (children, in this case) of having a meaningful relationship with each parent. The father says that he has a strong relationship with the children. The mother has deposed that:
I believe that the relationship the girls have with their father is very important and that is why I have worked very hard to keep the relationship between them going while at the same time protecting the girls from the exposure to [Mr Tucker’s] aggression, poor judgment and insight, his addiction to pornography and potential sexual assault.[24]
[24] Affidavit of Ms Tucker 24.2.2012 at [46]
The Court must have regard to the need to protect the children from physical or psychological harm, as made clear by paragraph 60CC(2)(b). This is an important feature in this case and the Court must have concerns about the father’s conduct, noting the previous sexual assault on the older daughter, his involvement with alcohol and pornography and his diagnosed mental illness. The children’s safety outweighs all other concerns.
The evidence of the mother about what was said to her by Ms S, the clinical psychologist, in November 2011 about the potential threat to the children by the father is relatively flimsy. There is no direct evidence about Ms S’s views, only a second-hand account by the mother.
However, the Court must take a conservative approach until there is some more independent evidence about the father. This means that the children should continue to live with the mother. The father’s alternative proposal that the children should live with him if the mother remains in Newcastle does not appear to be well thought out. I would not be at all comfortable in making any parenting order that involved the children spending any overnight time with the father at this stage.
The mother’s proposal to live and work in Newcastle must be viewed in the context of the father’s decision to live and work in the Wollongong area during the week and only return to Sydney on weekends. The mother does not need to show compelling reasons to move to Newcastle, and the fact that she has family support in the Newcastle area is, to my mind, a good reason for her to take that course.
To order the mother to return the children to live in Sydney on an interim basis would seem to me to be disruptive to them, as they have already commenced in a new school and are now in their second term at that school. For the time being, at least, their mother will remain the children’s primary caregiver.
If it is decided after a final hearing, which would necessitate the preparation of a family report at least, that the mother would be ordered to relocate the children’s residence back to Sydney, then the mother will need to make orderly and non-disruptive arrangements to bring them back. Newcastle is not so far away that the move could not be reversed if the Court were to decide that remaining in Newcastle would not be in the children’s best interests.
In the meantime, the children can still see their father on weekends and on designated days in the school holidays, but they will not be staying with him overnight until further order.
Each party seeks an order that the parents should have equal shared parental responsibility for the children. I will make that order until further order. The question can be considered afresh at the final hearing, when the allocation of parental responsibility at this interim hearing will be disregarded, as required by s.61DB of the Act.
Appointment of an Independent Children’s Lawyer
The Court will need independent evidence about the children’s best interests. The matter appears to have a number of features that the Full Court of the Family Report referred to in Re K[25] when it suggested guidelines for trial courts in determining whether a child’s interests should be independently represented by a lawyer. There is a prior case of child abuse involving an older child, there is a diagnosis of mental illness and there are allegations by the mother about the conduct of the father which would have the potential to impinge on the children’s welfare.
[25] (1994) 17 Fam LR 537; FLC 92-461
I will make an order under s.68L of the Act that the children’s interests should be separately represented by a lawyer.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 May 2012
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