Veitch and Leslie

[2016] FCCA 844

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEITCH & LESLIE [2016] FCCA 844

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 13 & 11 – parties have poor and mistrustful parenting relationship – final orders envisage children living with mother and spending regular time with father – parties previously lived in reasonable proximity at (omitted) and (omitted) respectively – mother has moved unilaterally with children to (omitted) – father seeks return of children – nature of interim hearing – principles relating to unilateral relocation – best interests.

Legislation:

Family Law Act 1975, s.4

Cases cited:

Morgan & Miles [2007] FamCA 1230

Applicant: MR VEITCH

Respondent: MS LESLIE

File Number: ADC 2304 of 2008

Judgment of: Judge Brown

Hearing date: 10 February 2016

Date of Last Submission: 10 February 2016

Delivered at: Adelaide

Delivered on: 10 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Boehm

Solicitors for the Applicant: Johnston Withers

Counsel for the Respondent: In Person

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed urgently to represent the interests of the children X born (omitted) 2003 and Y born (omitted) 2004 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr G of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner 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 8 June 2016.

4. 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 ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

   e.any other matters that the family assessor considers important to the welfare or best interests of the said child.

5. 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.

6. 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.

7. 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.

8. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

9. The matter is fixed for final hearing before Judge Brown on 1 & 2 August 2016 at 10:00am NOTING 2 days allowed.

10. The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 4 July 2016.

11. The respondent file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 18 July 2016.

12. Further consideration of this matter is adjourned to 4 July 2016 at 9:30am for directions and to ascertain whether there is any utility the parties attend a family dispute resolution.

13. The mother deliver the children to the father at the (omitted) Police Station at 4:00pm on 25 March 2016 (Good Friday) and thereafter the father spend time with the children from that time until 6:00pm on 28 March 2016 (Easter Monday).

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. In the event the mother elects to return to live in the (omitted)/(omitted) area prior to 28 March 2016 the children live with her and the children spend time with the father in accordance with the court orders dated 21 August 2013 made by Judge Lindsay (copy attached).

2. In the event the mother elects not to return to live in the (omitted)/(omitted) area as envisaged by order 14 hereof the children live with the father in (omitted) from 6pm on 28 March 2016 onwards and the father be at liberty to enrol the children at an appropriate school in the (omitted) district.

3. In the eventuality the children live with the father pursuant to these orders the mother spend time with the children as follows:

   a.from 4:00pm on 18 April 2016 until 4:00pm on 25 April 2016; and

   b.from 4:00pm on 11 July until 4pm on 18 July 2016

   with the children to be exchanged between the parties at the (omitted) Police Station.

4. Prior to the Easter weekend the father spend time with the children as follows:

   a.on Saturday, 20 February 2016 from 10:00am until 4:00pm the following Sunday; and

   b.on Saturday, 5 March from 10:00am until 4:00pm the following Sunday

   with the children to be exchanged at the (omitted) Police Station.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2304 of 2008

MR VEITCH

Applicant

And

MS LESLIE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing concerned.  Given the controversy of the matter and the fact that it is proceeding to a final hearing, it is appropriate that the reasons be transcribed.

2. This afternoon, I am dealing with a difficult application in which Mr Veitch is the applicant and Ms Leslie is the respondent.  The parties are the parents of two children, X, who was born on (omitted) 2003 and Y, who was born on (omitted) 2004. 

3. These reasons for judgment are directed towards determining interim care arrangements for the two children concerned.  The factual situation which brings the parties to this point is a fairly common one, which regularly confronts the court.  It is what lawyers categorise as a unilateral relocation case.

4. What lawyers mean by this phrase can be summarised as follows.  Essentially one parent asserts that the other parent has moved with the children concerned far away from that parent without first having obtained the permission of the other parent concerned and the resulting unauthorised move has created great difficulties for the parent left behind to interact regularly with the children affected by the move. 

5. Australia is a very large country and its citizens are free to move around throughout it.  Australians are mobile by nature and it is very common that, for one reason or another, one parent wants to move away from the other parent with whom he or she has been previously involved regardless of the fact that the interest of children will also be affected by the move.

6. The court has to be careful about how it manages these types of situation.  Inevitably they create great controversy and dispute.  In a case called Morgan & Miles[1] Boland J has said it is only in cases of exceptional emergency that the court should approve cases where a parent has moved with children far away from the other parent without the clear permission of that parent. 

   [1]  Morgan & Miles [2007] FamCA 1230

7. Cases involving one parent wishing to move away are very difficult and in a number of cases, including cases determined by the High Court, it has been said that the court needs to carefully weigh up the pros and cons of either allowing the move or not allowing the move from the point of view of the children.

8. Such consideration should not happen at an interim stage where the evidence available to the court is often sketchy and untested or if one party has skewed the playing field to his or her advantage by unilaterally moving away.  Rather whether there should or should not be a relocation should be decided by the court in an exhaustive or final hearing in which all relevant evidence is available including expert evidence about the emotional needs of the children concerned.

9. In addition, there are likely to be strong public policy considerations which dictate that the court should let it be known widely that it will not readily rubber stamp a move after it has happened because that has the potential to be the road to chaos as individual parents may be tempted to take things into their own hands and move, with children, without seeking either the approval of the other parent concerned or the court beforehand. 

10. I now move more specifically to this case.  Mr Veitch lives in (omitted) on the (omitted).  He works as a (occupation omitted) and I think he (employment omitted) but I might be wrong about that.  He was born in (omitted) 1971. 

11. Until the middle of 2015, Ms Leslie lived in (omitted), which is at the top of the (omitted) and on my calculations about 58 kilometres from (omitted).  She was born on (omitted) 1968.  She is not in the paid workforce at the present time and has been in receipt of a carer’s allowance I think for some time. 

12. The parties began a relationship with one another in 2002 and they separated in somewhat difficult circumstances in 2007.  It seems to be the case that their relationship had been unstable from time to time and remained so. 

13. The father has now re-partnered.  His current partner is a person called Ms R.  Mr Veitch and Ms R have a child, A, who is now age six.  In addition, Ms R has two other children from an earlier relationship.  They are B, who is aged about 10 or 11 and C who is aged about 15 or 16.

14. The parties first came into court in June 2008 on Mr Veitch’s application.  At that stage it was clear that the parties had a very difficult relationship with one another.  Over time, arrangements had developed which saw X living mainly with his father and Y living mainly with her mother. 

15. It was unsatisfactory that the two siblings lived in separate households with parents who found it very difficult to communicate.  Ultimately, it was ordered that a family report be prepared and the first family report was delivered in February 2009.  Mr M prepared the first report. It was his assessment that the parties had a very complicated relationship. 

16. Ms Leslie asserted that Mr Veitch was a violent, abusive alcoholic person who regularly abused marijuana.  From Mr Veitch’s perspective, the mother had long-standing issues to do with her mental health capacity and was therefore an unstable and precarious mother who regularly neglected the children. 

17. In these difficult circumstances involving significant child protection issues, Families SA were invited to intervene in the proceedings but apparently they declined to do so.  At that stage, Mr M recommended that the children should continue to live in separate households. 

18. His reason for this recommendation seemed to have turned primarily on what the children said to him.  Y said, “I want to live with mum” whilst X said, “I want to live with my dad.”  It was also Mr M’s impression that the children had become accustomed to living in separate households and although this was not ideal,, more problems were likely to arise if the arrangement was changed.

19. In any event in July 2008, an order was made to this effect with the children spending time with one another regularly on weekends and during school holidays.  Handovers took place at the (omitted) petrol station at (omitted).  This regime broke down in the early part of 2013.  It seems there had been a pattern from time to time of the children being withheld from the other parent.

20. Anyway, the case came back into court in February 2013, again on the father’s application.  It was his case that the mother was refusing to return X to him.  There were other difficulties.  The father says that these difficulties had arisen because he had obtained an intervention order against Ms Leslie, which she resented. 

21. At that stage he alleged that the mother had been diagnosed with what he described as a schizoaffective disorder.  He was also worried about the care arrangements for the children, particularly that X had not been returned to him in contravention of the earlier order.  He was also concerned at this stage that the mother was not compliant with her psychiatric medication and this rendered her an ineffective parent. 

22. Again, Mr M was tasked to examine the situation and because of serious allegations each party had made, it was also ordered that there be an independent children’s lawyer appointed.  To Mr McDonagh, Mr Veitch reiterated his concerns that the mother was neglecting the children because they were not attending school properly, were not being fed properly and were not being properly bathed and clothed.

23. It was his position at this stage that although the parties had been separated for many years, the mother wanted to reconcile with him and when he had made it clear that he had no wish to do so, she had reacted in an emotional manner against him.  From his perspective, this was just evidence that the mother was not in a good state of mind to parent the children properly. 

24. The mother reasserted her position that the father had serious issues with alcohol and drug use.  It was also her position that Ms R had seriously assaulted her, leading to police charges against her.  Sadly, it seemed that, over the intervening years, there had been no diminution in the tensions between the parties.

25. The children were again interviewed and X was described by Mr McDonagh as being a wary child with little self-confidence.  He was monosyllabic but he said it was better at his mum’s house.  Y was described as a more confident, articulate child.  She, too, expressed a preference to live with her mother. 

26. At this stage, Mr M said the relationship between Mr Veitch’s household and Ms Leslie’s household was atrocious.  Mr Veitch and Ms R had no confidence that the mother could parent the children properly.  They remained convinced that Ms Leslie’s mental health was not satisfactory and, in this context, Ms Leslie conceded that she had had something of a breakdown but she attributed this to being assaulted by Ms R. 

27. At this stage Mr Veitch was concerned that the children were being coerced into saying that they wanted to live with their mother but Mr M discounted that although he did not discount the possibility that there were tensions between Ms R and X.  Mr M was also concerned that perhaps Y was manipulating the situation. 

28. Given the issues regarding her mental health, Ms Leslie’s then solicitor, Ms O’Leary obtained a psychiatric report from Ms Leslie’s treating psychiatrist, Dr A, which indicated that she had a history of brief psychotic episodes which were precipitated by environmental stress.  However, Dr A thought her prognosis was good if she continued ongoing treatment with Risperidone and had support from a community mental health team.  Ms Leslie was concerned about the possibility of weight gain from such psychotropic or antipsychotic medication.

29. I am conscious that I may not have accurately summarised the parties’ history with one another or have missed out some important factor which brought them to court in July or, I should say, in August 2013, when they reached final agreement in respect of arrangements for X and Y. 

30. In my own defence, I point to the fact that I am dealing with this matter on an ex tempore basis and the documents filed to date fill up two reasonably large files.  I give this history to indicate the complexity of this matter up until August 2013 and, indeed, after that date, which has involved the appointment of an independent children’s lawyer and two family reports from an experienced family consultant.

31. Anyway, on 21 August 2013 the parties agreed, in the light of what Mr M had recommended, that the children, X and Y, should live mainly with their mother but spend time with their father regularly on alternate weekends from 4.30pm Friday until 4.30pm on the following Sunday, for the first half of each school holiday period and on regular periods of time over Christmas and Father’s Day and on the children’s birthdays.  The children were to be handed over at the (omitted) Police Station at the beginning of each period and the (omitted) Police Station at the conclusion.

32. Arrangements were made for the father to telephone the children each Tuesday and Thursday and, significantly, the parties were to have equal shared parental responsibility for the two children and an injunction was made restraining Ms Leslie from moving the children’s place of residence without written notice to the father and, presumably, with his consent. 

33. The matter returned to court again on Mr Veitch’s application on 30 September 2015.  At that stage it was his position that he had not seen either child since 29 June and he did not know where they were.  He had received a letter from the children’s school expressing concern that the children had not attended at school for the start of term 3 in 2015.  It is his case that he had an inkling that the mother had moved but he did not know specifically where to. 

34. On that basis he filed an application on 30 September 2015.  In his application he seeks the return of the children to the (omitted) area so that the orders which were made in August 2013 can be reinstated.  However, if the mother is unwilling to return to where she previously lived in (omitted) he asserts that the children ought to live with him.

35. His application was made returnable on 27 October 2015.  He did not know where the mother was, though he thought she might be in (omitted) but he did not know precisely where.  A location order was made on 27 October 2015.  Thereafter the mother was served and she has attended at court by telephone on a number of occasions.  She was directed to file a response on a number of occasions but has not technically done that. 

36. I have conversed with Ms Leslie on the telephone on a number of occasions and have got some sort of impression of her situation and the difficulties which confront her.  I mean Ms Leslie no disrespect but she seems to be paralysed in respect of responding to these proceedings in an appropriate way.

37. I have urged her to get legal advice but although she is a person who is used to dealing with bureaucracies and people in authority, it seems to me that she is unlikely to be able to liaise with them effectively for a number of reasons.  Again, I mean her no respect but she has not got a high standard of education.  She is financially disadvantaged.  She has had some psychiatric issues.  She tells me she has some heart difficulties at present.  It is her case that she finds it very difficult to deal with Mr Veitch and I accept that this is so.

1. Nothing has changed it would seem, from June 2008 onwards to change Mr M’s view that the relationship between the parties is very difficult indeed.  Anyway, Ms Leslie concedes that she moved to (omitted). 

2. It is her position that she sent a text message to Mr Veitch to this effect.  It is her case that she was frustrated by Mr Veitch’s alleged non-involvement with the children.  It is her case that X was getting into trouble at school and had been suspended and she was fearful that he was getting into the wrong crowd.

3. It also seems to be the case that her relationship with her then partner was under pressure at the time.  Her former partner had decided to move with his children to (omitted) and against that background it seems to me that it is logical for me to conclude that she moved to (omitted) in an attempt to salvage that relationship. 

4. It is clear to me she did not have Mr Veitch’s formal imprimatur for the move with the children.  It also seems to be the case that, when she arrived in (omitted), Ms Leslie did not tell Mr Veitch where she was living and she made scant, if any, arrangement for Mr Veitch to spend time with X and Y.

5. Again, I mean no disrespect to Ms Leslie.  She just hoped it would all work out for the best in time.  She tells me she did the best she could to contact the Family Relationship Centre in (omitted) when she got there.  In my view, this was closing the stable door well after the horse had bolted. 

6. The matter came into court shortly prior to Christmas.  Ms Leslie had not filed any affidavit material, although it seems clear that she had known of these proceedings for a reasonably significant period of time.  She had been to see a lawyer in (omitted) but had not been able to get Legal Aid.

7. Whether that was because the Legal Service Commission, for reasons of public policy, do not fund unilateral relocations I am not sure.  Anyway, Ms Leslie is still not represented and I suspect it is very difficult for her to present her own case.  She did, however, prepare a reasonably lengthy handwritten affidavit which she has provided to Mr Veitch’s solicitors. 

8. I accept she tried to file it with the court but for reasons which are beyond my comprehension it was rejected.  The process is difficult enough as it is without putting bureaucratic hurdles in the way of a person such as Ms Leslie.  Accordingly, I accept that Ms Leslie has tried to engage with the process of the court.

9. Before the hearing, I have retrieved a copy of her affidavit from Mr Boehm, counsel for the husband and I have a photocopy of it.  Ms Leslie’s case is simple.  She says she is now happy and well-settled in (omitted) and if X and Y are compelled to leave (omitted) they will be distraught and it will not be helpful to them. 

10. As I say, she is a person with a number of health issues.  She has to have her gallbladder removed and she has hypertension.  It is her case that she has made all her medical arrangements from (omitted) and it will be potentially difficult for her health if she has to move away.

11. She says she did her best to tell Mr Veitch what she wanted to do.  It is her case that she cannot talk to him face-to-face and he does not respond to her text messages.  That all may be so but, in my view, there was not a significant emergency confronting Ms Leslie.  In the vernacular I think she took a punt and hoped that it would be okay and that Mr Veitch would not do anything about the move and so it would all work out from her perspective. 

12. I am at pains to point out to everyone concerned that I view this as a highly complicated case.  I cannot determine on a final basis what are likely to be the multiple and conflicted factors which influence whether Ms Leslie should live with the children in (omitted) or whether the children should live with their father in (omitted).  I just do not know. 

13. I suspect that the situation so far as X and Y are concerned is that it is fluid.  I am also well aware that I am dealing with the freedom of movement of a citizen.  There is no specific authority residing in the court to stop Ms Leslie living wherever she wants.  Ms Leslie has an entitlement to freedom of movement.

14. However, I am not dealing with her rights alone.  I am also dealing with the entitlement of the children concerned to have a proper level of relationship with not one but with both of their parents.  In this context and of some significance, this case arises where there is an existing order to which the parties agreed which was later ratified by the court and which regulates arrangements for the children. 

15. In my view, it is clear that the mother has breached that order and in my view she did that at her peril.  If she had sought or she had got some legal advice about this matter well, she would have been told that it was not a prudent thing for her unilaterally to relocate the two children against such a background, particularly the existence of a court order which specifically prevented the children being moved.

16. Accordingly, it is my view that it is best that so far as is possible and it depends on what Ms Leslie decides to do, that prior to a further hearing - and this will be the third set of proceedings in respect of these children - that as far as possible there be a level playing field imposed on which to determine where and with which parent X and Y should live.

17. It is up to Ms Leslie to decide whether she wants to come back to the (omitted) area.  If she does not, what I will do is put in place orders which she asserted would be appropriate for Mr Veitch, if she was able to remain with them in (omitted).

18. Ms Leslie’s case depends on the views and wishes of the children.  I am not prepared to accept Ms Leslie’s assertion as to what the children’s wishes are.  They are likely to be conflicted children and confused children.  Indeed, when Mr M saw the children he was concerned that they were unhealthily involved in the court proceedings between their parents.

19. I will expedite the final hearing of this matter but prior to that hearing it is my view that the children ought to live in the (omitted) area.  I will order a family report, which amongst other things will explore any views which the children hold and examine what is influencing those views.

20. In addition, given their comparative maturity, I will also order that the children be independently represented in the case as occurred previously.  Both parties have made significant criticisms of the level of parental insight and ability of the other.

21. I have determined that the mother should be given a reasonably lengthy period of time to rearrange her affairs and to surrender her lease in (omitted) and to get herself back to the (omitted) area if she decided to do so.  I will give her until 28 March.  I appreciate that Mr Veitch will say that the mother was able to extricate herself from (omitted) with alacrity and I accept that that is so but Ms Leslie is not a wealthy person and necessarily it will take her some time to arrange things. 

22. I also agree that it is invariably the case in matters like this, that the relocating parent can move very quickly when it suits him or her, even if responsible for quite young children and then when they have moved they say, “Well, I can’t afford to come back” or “I am comfortable here now and it will be upsetting for the children to move again.”

23. In my view, this is a classic example of unilateral relocation and the court has to adopt a fairly strict attitude to such matters because in general terms, it is not in the best interest of children that one parent can elect to up stumps and move without reference to the other parent particularly when the parents concerned share parental responsibility for their children.

24. What flows from parents sharing parental responsibility for their child or children is that they are required to consult about major long-term decisions as defined in section 4 of the Family Law Act.  These include a decision which will have serious ramifications for what time a parent spends with the children concerned, specifically, changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

25. I appreciate that (omitted) is not in a different State.  It is not thousands of kilometres away from (omitted).  But it is, for people of the means of Ms Leslie and Mr Veitch, a very expensive exercise to travel between the two locations.

26. Another of the factors which has influenced my decision is that it was only as a consequence of my intervention, when I made an order prior to Christmas, that the father was able to spend any time with the children at all.  Ms Leslie had done nothing whatsoever to facilitate the children spending time with their father in the months beforehand and had no other proposal herself.

27. This order was made in the face of Ms Leslie’s opposition and over her objection that she could not possibly drive to (omitted) or to Adelaide to exchange the children.  In these circumstances it was directed that the children be exchanged at (omitted) and it was only as a consequence of this that Mr Veitch was able to spend time with X and Y.  To Ms Leslie’s credit, she acknowledges that the children enjoyed their holiday time with their father.  This underlines the contact difficulties implicit if the children continue to live in (omitted).

28. So Mr Veitch went for about six months without spending any time with those two children, notwithstanding having an order in his favour which authorised him to the see the children regularly.  With the greatest respect to Ms Leslie, she did not do anything particularly to remedy that situation.  I have given her five or six weeks to organise her affairs.  A courtesy with which she did not accord Mr Veitch when she moved away from (omitted).

29. I will put in place some orders to ensure that Mr Veitch is able to spend time with X and Y until Ms Leslie has decided what she is going to do.  If she elects to remain in (omitted), I will order that the children come into Mr Veitch’s care.

30. So Ms Leslie has to make some significant choices.  I appreciate that she may lose her bond which would be a financial crisis for her.  However, at the end of the day when parties do things precipitously or do not think about the consequences of their actions for others, they create difficult scenarios for the court to resolve and sometimes there can be extreme consequences.

31. Whatever I do at this stage, it will have invidious consequences for X and Y.  I have tried to balance those concerns to arrive at an outcome which I think will be the best one for the children, bearing in mind the benefits they are likely to derive from having a meaningful level of relationship with both their mother and father.

32. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         13 April 2016