VERNON & VERNON

[2019] FCCA 1361

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERNON & VERNON [2019] FCCA 1361

Catchwords:
FAMILY LAW – Unilateral relocation of children aged ten & five interstate – children have significant special needs – relocation assisted by independent agencies on basis of concerns of children’s exposure to family violence – relocation has potential to sever children’s paternal relationship – benefits of meaningful parental relationships – protective concerns – assessment of risk – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60B, 61DA, 4AB

Cases cited:

Morgan & Miles [2007] FamCA 1230
Deiter & Deiter [2011] FamCAFC 82

Sampson & Hartnett (No.10) (2007) FLC 93-350

Applicant: MR VERNON

Respondent: MS VERNON

File Number: ADC 5069 of 2018

Judgment of: Judge Brown

Hearing date: 14 May 2019

Date of Last Submission: 14 May 2019

Delivered at: Adelaide

Delivered on: 22 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Praolini

Solicitors for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Ms DeGiglio

Solicitors for the Respondent: The Family Law Project

ORDERS

UNTIL FURTHER OR OTHER ORDER:

1. The mother have sole parental responsibility for the children [X] born … 2009 and [Y] born … 2014.

2. The said children live with the mother.

3. The father be restrained and injunction granted restraining him from:

   (a)Attempting to contact or communicate with the mother or the said children;

   (b)Attempting to locate the mother.

4. The respondent’s address at which she and the said children reside be kept suppressed.

5. The proceedings be transferred to the Family Court of Western Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5069 of 2018

MR VERNON

Applicant

And

MS VERNON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with the relocation of two children, aged ten and five years respectively, by one parent, a significant distance from where the other parent concerned lives. 

2. In addition, the relocating parent has moved to a place undisclosed to the other parent and wishes that location to remain confidential.  Necessarily, if this situation becomes permanent, it will result in the relationship between the children and one of their parents being significantly curtailed, if not permanently severed.   

3. The relocating parent did not have the other parent’s approval to move the children in this way and asserts that she did so for cogent reasons relating to the safety of the children involved.  In the jargon of family lawyers, such a scenario is categorised as a unilateral relocation. 

4. Generally speaking, the law does not approve when one parent acts unilaterally of the other in respect of major long term issues to do with the care, welfare and development of any child.  Changes to the living arrangements of the child, which make it significantly more difficult for the child to spend time with a parent, fall within the rubric of major long-term issues relating to a child.[1]

   [1]  See Family Law Act 1975 at section 4

5. For obvious reasons, the move of a child, far away from one parent is likely to have significant implications for the level of relationship which the child concerned will have with the parent left behind, particularly if the distance involved is significant.  The move involved may have the consequence of removing a significant level of meaning in the parental relationship concerned. 

6. On the other hand, any decision made by the court, relating to a child, must be founded on the court’s assessment of how that child’s best interests are ultimately served.  The child’s interests have paramountcy over those of a parent.

7. In generic terms, in determining how a child’s best interests are to be served, the court must balance the benefits likely to derive to a child from having a meaningful level of relationship with a parent, together with the need to protect a child from being exposed to any form of family violence, neglect or abuse. 

8. Significantly, as a consequence of amendments to the Family Law Act, made by Government, the court is directed to prioritise protective concerns in respect of children.[2] 

   [2] See section 60CC(2A)

9. Accordingly, in some cases, there may be circumstances, relating to protective concerns surrounding a child, which justify a unilateral relocation.  However, given the importance the law also places on parental relationships, such cases must be carefully examined.

10. These are difficult issues to unpack, but are particularly so in the context of an interim hearing.  They do not permit such careful examination.  As such, at the interim stage, it is the norm that the court permits relocation only in cases involving a significant level of emergency for the family concerned.

11. This is because interim hearings, as is the case in this matter, take place in a truncated form, which prevents the court being able to make definitive findings of fact.  In addition, the evidence available to the court, in such cases, has frequently been hastily prepared against a background of family crisis and conflict. 

12. However, notwithstanding the deficits arising in the evidence before it, the court must still make a decision and cannot defer its decision making responsibilities, particularly in cases involving child protection, for any lengthy period of time, pending the receipt of more definitive evidence. 

13. Accordingly, the task for the court, at the interim stage, must involve some provisional assessment of the evidence then available, notwithstanding its untested nature, regarding the gravamen of the situation facing the unilaterally acting parent and the implication of that situation for the best interests of the children concerned. 

14. In broad terms, this assessment will involve a quantification of the risk arising for the child or children concerned, from the various outcomes possible in the case – including from returning to the location left behind or remaining in the current locale. 

15. In generic terms, the court must assess the risk for a child, in emotional and developmental terms, of being separated from a parent against the risk arising for such children of being placed in a situation where they are at risk of suffering either physical or psychological harm as a consequence of being exposed to family violence, abuse or neglect. 

16. As previously indicated, protective concerns are to be given precedents.  Superior courts, including the High Court, have directed that courts, such as this one, should not take an unacceptable risk in respect of the potential of exposing a child to harm. 

Background

1. Mr Vernon “the father” and Ms Vernon “the mother” are the parents of [X] born … 2009 and [Y] born … 2014.  Both children have significant special needs, resulting in them having delayed intellectual development.

2. At present, the children are living with their mother in undisclosed location in Western Australia.  The father lives in Town B in South Australia.  Until October 2018, the children and their mother also lived in Town B. 

3. The parties met in 2008 and married on … 2009.  There seems no controversy that they finally separated in October of 2017, when the father was arrested and subsequently remanded in custody, as a consequence of being refused bail, for a period of approximately six months.  Court documents indicate the father was released from custody on 19 April 2018. 

4. The father commenced these proceedings on 8 December 2018.  He acknowledged that he was subject to a final domestic violence order, which named both the mother and the children concerned, at the date of his release from remand and which has continued.  This order prevents him having any contact with the mother. 

5. At the time of his application, the father was aware that the mother and children had left Town B but he was unaware of their location.  He also conceded that he had not interacted with the children since his arrest in October of 2017.  In these circumstances, he sought an order directing Centrelink to provide his lawyers with the means of serving the mother with his application. 

6. In his affidavit, filed in support of his application, the father deposed that he had previously had a close involvement with both children and had previously been integrally involved with their care.  He deposed that he shares the children’s disability, which they have genetically inherited from him. 

7. This condition is a disorder in which intentional movements of one side of the body are mirrored by involuntary movement on the other side.  It is a rare condition but its symptoms are significant.

8. In his amended application, filed 24 January 2019, the father proposes that he and the mother should have equal shared parental responsibility for [X] and [Y] and, after a process of supervised time spending at the Town D Children’s Contact Centre, he should spend gradually increasing periods of time, with both children, on weekends and during school holidays. 

9. In order to facilitate his proposals, he wishes the court to direct that the children and their mother return to live in an area within a radius of 50 kilometres of Town B and the mother herself be restrained from changing the children’s place of residence in the future.  In this context, it is significant that Mr Vernon does not seek that the children live with him, either on an interim or final basis.

10. Accordingly, the father seeks orders that would enable him to be reunited with the children because he misses them desperately and loves them dearly.[3]  In addition, he alleges that the mother suffers from some form of mental instability, which renders her prone to become agitated and to make unfounded allegations against individuals, including him.  By necessary implication, he contends that any complaints of violence, made against him by the mother, are overblown.

    [3]  See father’s affidavit filed 6 December 2018 at [12]

11. The relevant Commonwealth Information Order was made by the court on 30 January 2019.  The mother was served with the relevant application on 2 March 2019.  Thereafter, the mother was granted time to file her answering documents and the proceedings were fixed for interim hearing on 14 May 2019. 

12. The mother formally responded to the father’s application on 26 April 2019.  On both an interim and final basis, she seeks orders that the children live with her and she have sole parental responsibility for them.

13. She has no formal proposals for the children to spend time with their father.  It is implicit from the other orders, which she seeks, that it is her position that the children will derive no benefit from interacting, with their father, in any shape or form.

14. This inference arises from other orders, which the mother seeks, which can be summarised as follows:

    ·An injunction issue restraining the father from ever attempting to contact her for the children or pursuing any attempt to locate where she lives with the children;

    ·Her address be permanently suppressed. 

15. It is the mother’s case that the parties’ lengthy relationship was characterised by extraordinary levels of family violence and abuse, stemming from the father’s psychiatric illness and abuse of methamphetamines.

16. It is also her case that the children, particularly [X], were exposed regularly to the father’s abusive behaviour.  In these circumstances, she asserts that she had no realistic option, in order to ensure the protection of the children and herself, other than to leave Town B in secret from the father. 

17. The mother refutes any suggestion that she had any ulterior motive for relocating the children, away from Town B, other than issues relating to safety.  In support of her position, she points to the fact that she, via the agency of domestic violence service E, a domestic violence service based in Town F, she secured assistance from the Victims of Crime Commissioner to move away from Town B.

18. In this context, it is her position that there is therefore evidence that an independent authority, after having examined material available to it, concluded that the mother and children’s relocation was justifiable and was prepared to advance funds to this effect.  As such, she contends that the situation confronting her was of sufficient moment to justify her move with the children interstate.

19. In these circumstances, she would categorise her actions as being of a different quality to other unilateral relocation cases, which frequently come before the court, involving situations in which the moving parent alone has subjectively judged the risk involved to the family.

20. In this context, it is now necessary for me to outline, at best I can, the various matters which seem to have informed the Commissioner’s decision and why the mother herself, through the agency of domestic violence service E, made the relevant application. 

21. The mother’s case can be summarised as follows:

    ·The father has been an habitual user of methamphetamines throughout the parties’ relationship;

    ·In late 2009, following a prolonged bout of methamphetamine use, the father engaged in bizarre and violent behaviour, which resulted in police involvement.  Thereafter, he was placed into an induced coma and hospitalised in a mental health facility for approximately 28 days;

    ·There was a similar incident, shortly afterwards, resulting in a further admission for 28 days;

    ·In 2013, the father assaulted [X], when he swung her by the ankles, in a fit of temper;

    ·Following this incident, the father was arrested by police, who were forced to subdue him with pepper spray in the presence of both the mother and [X].  The father was incarcerated for a period of two months, at this stage and the mother and [X] were the subject of a family violence order;

    ·The father had a further incident of violent behaviour, relating to methamphetamine use in June 2015, which resulted in further police involvement and the father being incarcerated for a further two months;

    ·The final significant episode of violence occurred in October 2017.  Again, there was police involvement in this incident and, as previously indicated, the father was remanded in custody.

22. As a consequence of these various incidents, workers from the child protection service, at the instigation of SAPOL, elected to conduct a forensic psycho-assessment of [X].  This was completed in June of 2018. 

23. In the summary section to this report, the relevant clinical psychologist, wrote as follows:

    “[X] was referred to the CPS for a forensic psychosocial assessment following concerns she had been physically assaulted and threatened with a knife by her father, Mr Vernon, and had witnessed her father perpetrate violence against her mother in the context of a domestic violence incident lasting several days.

    It was evident throughout the forensic interview that it required a lot of effort and concentration from [X] to articulate her experiences clearly and she repeatedly expressed that she was finding it difficult and distressing to talk about some elements of the incident that occurred with her father.  Concerns arose about [X]'s emotional state during the forensic interview evidenced by her repeated statements that she felt “nervous” and “scared”.  It was hard to talk about, and she did not want to talk any further about her father or the incident.  Eventually it was considered that [X]'s emotional wellbeing and coping would be compromised if questioning continued and therefore the interview was concluded.

    During the forensic assessment, [X] provided concerning information consistent with the allegations.  [X] described that her father “put a knife on” her, threatened her with the knife and threatened to hit her, her father “fight back” to her, that she and her sister, [Y] (four years old), ran away into [Y]s bedroom and shut the door, that she hid under [Y]’s bed and her father came and picked up [Y]’s bed, that [X] felt sad and was crying, and her father then went to the lounge room.  [X] also explained that following this, her father was “put in jail”.

    Considering [X]’s level of contextual detail provided in her forensic interview account (both verbally and pictorially), the consistency between the information she provided and her mother's police statement and account to the CPS clinician, her description of her emotional reaction at the time of the incident (feeling “scared” and was “crying”) as well as her emotional state during the forensic interview, and her father's guilty plea to the charges of domestic violence, [X] was considered to be retrieving actual experienced events from her memory when she described her father threatening her with a knife in the context of domestic violence.

    During the assessment, Ms Vermon explained that following the allegations, [X] had difficulty sleeping, was experiencing nightmares, displayed aggressive behaviour, was having tantrums, and was very worried about her safety, and concerned that her father would come to her school.  In addition, Ms Vernon stated that she had also observed a regression in [X]'s ability to regulate her emotions, something [X] had received considerable intervention for in the past, and was able to do effectively prior to the allegations arising.  Considering [X]'s trauma symptomology, it is imperative that she continues to engage in therapy with the CAMHS clinician to ensure her ongoing psychological and emotional wellbeing.

    Further, from information gathered in the assessment, [X]'s younger sister, [Y] (aged four), had also been exposed to ongoing domestic violence perpetrated by Mr Vernon and displayed some concerning behaviour, such as chasing [X] with a steak knife.  Ms Vernon requested strategies to help manage [Y]’s behaviour and assist [Y] in her recovery of trauma given her speech delays and subsequent difficulty in expressing herself and communicating what she had experienced.  The clinician corresponded with domestic violence service E to arrange ongoing therapeutic support for [Y].[4]

    [4]  See exhibit NAV01 to the mother’s affidavit filed 26 April 2019

24. Following the father’s arrest and remand, in October 2017, the mother and children relocated to Perth, where Ms Vernon has family support.  They returned to Town B in early January of 2018, largely so that the children could return to their respective schools and engage with their various therapists.  At this stage, the mother began her engagement with domestic violence service E. 

25. The mother was anxious that [X] be spared the trauma of having to give evidence in criminal proceedings instituted by the police.  She asserts that it was only at a late stage that the father elected to plead guilty to lesser charges, which resulted in him being released from custody on the basis of his lengthy remand.  She asserts, however, she remained fearful of the father. 

26. Counsel for the father, Mr Praolini points to the fact that the mother returned to Town B and remained in the township following the father’s release from custody in support of his submission that the mother has overstated the level of her anxiety and assessment of the threat represented, both to her and the children, by the father, is overstated and exaggerated. 

27. On the other hand, it is the mother’s case that since the father’s release, she has been subject to his unwanted surveillance of her, including on social media and through the use of a drone.  It is her case that the police have not been able to pursue these matters, against the father, because of a lack of evidence. 

Legal Principles

1. 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.  The difference between the two hearings being that the former occurs in a shortened form, which precludes findings of fact in respect of contentious matters. 

1. The principles to be applied to parenting cases are contained in Part VII of the Family Law Act 1975. 

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].

3. 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.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

5. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

6. 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 the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA]. 

8. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

9. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

10. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

11. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

12. Given the structure of Part VII of the Family Law Act, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned, given the emphasis on the beneficial aspects of parental relationships for children in the Act.

13. In this context, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.

14. Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent.  These concerns are particularly pressing in respect of young or immature children.  In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[5]  

    [5]  Morgan & Miles (2007) FamCA 1230

15. Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage.  She said as follows:

    “…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.

16. The concept of family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

17. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act.  Some of these examples are:

    ·an assault;

    ·a sexual assault or other sexually abusive behaviour;

    ·repeated derogatory taunts;

    ·stalking;

    ·intentionally causing death or injury to an animal.

18. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.

19. Again, the legislature has provided a list of examples which may constitute the exposure of a child to family violence.  They include the following:

    ·Overhearing threats of death or personal injury by a family member towards another member of the child’s family;

    ·Seeing or hearing an assault of a member of the child’s family by another family member;

    ·Being exposed to the sequellae of such an assault, including police involvement.

20. In Deiter & Deiter[6], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [6]  See Deiter & Deiter [2011] FamCAFC 82

Discussion

1. In this case, the evidence regarding the exposure of both children to family violence is compelling.  Given their special needs, both [X] and [Y] must be regarded as being vulnerable children.  The child protection history indicated [X] has suffered some psychological harm as a consequence of this exposure.

2. The evidence also indicates that the father has a complicated psychiatric history and has been incarcerated in respect of several incidents of violence, which have involved both the mother and the children.  In these circumstances, in my assessment, the risk arising for the children of being further exposed to family violence must be regarded as significant.

3. In all these circumstances, I am satisfied that the situation confronting the mother, in October of 2018, was one of extreme emergency, which justified her unilateral relocation of the children away from Town B.  Collateral support for this assessment of the risk is provided by the decision of the Victim of Crime Commissioner to fund the relocation.

4. One of the factors leading to the Commissioner’s decision was the child protection service assessment of [X], which is indicative of a child who has suffered psychological harm as a consequence of being exposed to ongoing family violence.  Town B is a small town.  As such, the mother and children are likely to be visible within the community.

5. In these circumstances, I do not think that it can be inferred that the mother has in some way exaggerated her concerns by her return to Town B during the father’s remand in custody and her decision to remain in the township following his release in April of 2018.  In my assessment, the degree of risk, to which she and the children are subject, has been potent.  In addition, I do not think that it can be concluded that there has been only isolated acts of violence.

6. The parties, in this case, have had a turbulent relationship for a lengthy period of time.  Perhaps, one or both of them can be criticised for prolonging it.  However, these considerations do not diminish the significance of the family violence in the relationship concerned, nor, in my view, represent any concession, on the mother’s part, in respect of the threat it contained for both her and the children. 

7. It may be the case that, as a consequence of her involvement with domestic violence service E the mother has been able to develop some level of insight into the potentially deleterious consequences, not only for herself but also for the children, of remaining in the relationship with the father.  I also acknowledge that it is probable that the parties also had some happy times together.

8. Accordingly, I do not consider that it would be in the best interests of the children concerned to compel their mother to return to live in Town B at this stage.  It is equally apparent (and in any event not an outcome sought by the father) that it would be inappropriate that the two children concerned should live with their father, in this location, in the event that the mother declined to return as directed. 

9. This would be clearly contrary to their best interests.   The mother has a constitutionally implied entitlement to freedom of movement, subject to considerations relating to the best interests of the children, which has precedence over her rights.  However, the mother’s interests and entitlements cannot be ignored, particularly given her undisputed role as the children’s primary provider of care.

10. The court’s authority, in this case, rests on its power to make a parenting order relating to the care, welfare and development of the children.  Although there is some jurisprudential controversy regarding the issue, it seems clear that the court has authority to make a coercive order – that is an order which directs a parent to live in a particular location although it is patently the case that such an outcome would not be palatable to the individual concerned.  It is clear that the court does have such authority, although it is to be utilised sparingly and carefully. [7] 

    [7] Sampson & Hartnett (No.10) (2007) FLC 93-350 at 82,016 [57] – [59]

11. Given the absence of any other viable carer, for the children, at this stage, other than the mother and given her preference is to remain living outside Town B, which is founded on significant protective concerns, I do not consider that such a coercive order could be considered to be in the best interests of the children concerned.

12. Having left Town B for cogent and understandable reasons, with the imprimatur and assistance of agencies independent of her, it would be difficult, in practical terms, for the mother to have to return.  In this regard, the father has no practical proposals as to where the mother would live.  She has also been away for a not insignificant period of time.  As such, any return to Town B would be extremely disruptive.

13. The difficulty with this decision and indeed with the other orders sought by the mother in respect of the permanent prohibition on dissemination of her and the children’s place of residence, is that it will almost inevitably result in a total severance of any paternal relationship for the child. 

14. Given the tender years of the children concerned, this must be regarded as a matter of the greatest significance in respect of the children’s future emotional development and, as such, one which should not be made irrevocably in the context of a truncated interim hearing. 

15. In these circumstances, it would appear that some more detailed assessment of any potential benefits, arising for the children from maintaining some form of relationship with their father, along with the possible detriments, if it is ceased, should be undertaken, before any irreversible decision is made.

16. Given the ages of the children concerned and their special needs, the most obvious form of initial inquiry, into these issues, should take the form of a family report undertaken by a suitably qualified and independent expert. 

17. Such a report could canvas the complex issues arising in this case, which are likely to include the following:

    ·How should the family violence, which has occurred between the parties, be characterised;

    ·What are the implications of the children’s exposure to this violence in terms of their development both in retrospect and prospectively;

    ·Given the mother is the undisputed primary carer of the children concerned, what are the possible implications for her level of psychological functions and what impact will this have on her capacity to parent the children effectively, if the children spend time with their father;

    ·How are the logistical problems arising in the case because of distance and the children’s special needs best approached;

    ·What are the views of the children, including any relevant issues regarding their level of insight and capacity to provide any such view;

    ·The mental health of each of the parties.

18. Neither party is in in a strong financial position.  The mother required financial assistance to leave Town B.  Accordingly, necessary logistical arrangements for the parties and children to take part in such a family report will be complicated.  However, these logistical issues alone should not result in the mother and children being directed to return to a particular location, whilst these necessary further inquiries are undertaken.

19. The emotional and physical safety of the children remains central and, as such, must have primacy over the practical difficulties arising from the need to examine more nuanced evidentiary issues for use in subsequent aspects of the proceedings.

20. In my assessment, for the reasons delineated above, it is likely to be extremely disruptive for the mother and children to have to return to live in the Town B area, either until the proceedings have been finalised or in order to complete any family report required.  Such an outcome would not be congruent with the protective needs of the children concerned, given the significance of the family violence issues in the case and their particular vulnerability.

21. I am not in a position to resolve the practical issues of how any family report is to be prepared.  For obvious reasons, this is not an issue on which either party has focussed on their filed material to the court. 

22. In addition, in the absence of a family report, the way forward in the case is unclear, particularly in term of what, if anything, should be done in respect of the children interacting with their father in future and what form such interactions should take.  

23. The difficult issues arising in this case render its easy and expeditious disposal problematic.  But, in my view, this is not reason to compromise the safety of either the mother or the children concerned. 

24. The residence of the father in Town B is the major factor tying the case to this court’s registry in South Australia.  Any family report is likely to focus on the children primarily. 

25. In these circumstances, I proposed transferring the proceedings to the Family Court of Western Australia for further directions.  The presiding judicial officer there is best placed to determine how any family report is to be prepared.

26. Given the emphasis I have elected to place on protective concerns regarding the children and my view that the mother was placed in a sufficient situation of emergency to render her unilateral relocation of the children justifiable in terms of their best interests, I have determined to make the orders sought by the mother on an interim basis.

27. 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 ninety one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       22 May 2019