Westcott & Larson
[2022] FedCFamC2F 1782
Federal Circuit and Family Court of Australia
(DIVISION 2)
Westcott & Larson [2022] FedCFamC2F 1782
File number(s): ADC 5016 of 2022 Judgment of: JUDGE BROWN Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – Interim parenting arrangements – two children aged nine – unilateral relocation of children from Adelaide to regional Victoria – allegations of family violence – assessment of degree of emergency facing relocating parent – nature of interim hearing – assessment of risk – best interests Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B 60CA, 60CC Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Division: Division 2 Family Law Number of paragraphs: 98 Date of hearing: 20 December 2022 Place: Adelaide Solicitor for the Applicant: Mr Laidlaw, Matthew Mitchell Respondent: Appeared in person ORDERS
ADC 5016 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WESTCOTT
Applicant
AND: MS LARSON
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS:
1.Within 21 days of the date of today’s orders the Respondent Ms Larson (“the mother”) cause the children of the relationship, X born in 2013 and Y born in 2019 (“the children”) to return to live in an area within a 10 kilometre radius of the City B Post Office at her own expense NOTING that should the Respondent fail to return the said children, the Applicant, Mr Westcott (“the father”) is authorised to make an application to the Court for a Recovery Order in respect of the children, without further reference to the mother, on 12 January 2023 at 10.00am (SA Time).
2.Within 24 hours of the children’s return to South Australia, the father spend a period of 7 consecutive days in the care of the Applicant father.
UNTIL FURTHER OR OTHER ORDER:
3.Should the mother elect to return to live within an area of 10 kilometres of the City B Post Office, pending the resolution of the parties’ competing applications, the aforesaid children live with her and the father spend time with the children from 4.30pm (or the conclusion of school) each alternate Friday commencing Friday 27 January until 9.00am (or the commencement of school) the following Monday or at such other times as the parties agree.
4.In the event that the mother does not return to live as envisaged in order 3 above, the children live with the father and spend time with the mother at such times and subject to such conditions as the parties agree from time to time.
5.That the children be exchanged between the parties, in order to give effect to these orders, at either their school or place of child care or at such other location as agreed between them or failing agreement as nominated by the Court.
6.The father have telephone communication with the children each Sunday commencing 25 December 2022 and each Wednesday commencing 28 December 2022 with the mother to instigate the call to the father’s mobile telephone number at 5.30pm (SA Time).
7.That each of the parties, their servants and agents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party to, with or in the presence or hearing of the child and from permitting any other person to do so;
(b)From utilising or subjecting the children to any form of chastising or physical discipline or from permitting any other person to do so;
(c)From changing the child’s primary residence outside of the Adelaide metropolitan area.
8.Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2013 and Y born in 2019 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia at [email protected] within 7 days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.
9.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.
10.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the children X born in 2013 and Y born in 2019 (the children) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
11.Part 1 of the event will occur by video, using Microsoft Teams, on 8 March 2023 with:
(a)the Applicant to attend at 9.00am;
(b)the Respondent to attend at 10.30am; and
(c)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
12.Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide at 9.00am on 10 March 2023. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
13.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
14.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
15.Not later than 4.00pm on 3 January 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
16.Pursuant to paragraph 5 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child; and
(f)an observed interaction between the parties and the child.
17.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
18.The Court Child Expert will be at liberty to inspect any material filed by the parties.
19.Further consideration of the matter is adjourned to 22 March 2023 at 9.30am for directions to take place at Court on a face to face basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Westcott & Larson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
Introduction
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. The family concerned is in a state of crisis. As such the parents involved need to know the outcome as soon as possible so that each can make the necessarily difficult and challenging arrangements required to put the decision into effect as soon as possible.
I am also painfully aware that it is the week prior to Christmas, traditionally a time for families to come together and celebrate. For the reasons that follow, I appreciate this is not likely to be a happy Christmas for the family concerned.
The case involves what lawyers call an interim unilateral relocation. At the outset, I will define each of these words to put the decision into context.
“Interim” means that the case arrives at an early or provisional stage at which the evidence available to the court is limited. There is no family report or independent assessment of the views of the children concerned or the nature of their relationship with each of their parents.
In addition, my exposure to each of the parents concerned has been limited. They are each critical of the other’s past behaviour. As a result, I am not able to resolve the conflicts in their evidence in a limited interim hearing, which is too truncated in nature to allow for cross-examination.
More significantly, the outcome at this interim stage is reversible, if and when more evidence comes to hand. Sometimes in difficult and controversial cases, it is appropriate for the Court to reinstate a pre-existing status quo to provide stability for the children concerned and fairness for the competing parents, particularly if one is likely to be disadvantaged vis-a-vis the other, prior to a final hearing, by an act of self-help on the part of the other parent.
“Unilateral” in this context means that a significant or major long-term decision in respect of children has been made by one parent alone without prior consultation with the other or the Court’s adjudication.
The Family Law Act 1975 (Cth)[1] in its principles and objects emphasises the legal position that parents share responsibilities for making decisions about their children and one parent should not make a decision about the parties’ children alone.
[1] Hereinafter referred to as “the Act”.
Section 4 of the Act defines the concept of major long-term decisions concerning children, and it includes a decision which has implications for the ability of a child to spend reasonable amounts of time with his or her parents.
This brings me to the most important term: “relocation”. Relocation cases arise when one parent, often for very good reasons relating to a new job or relationship, wishes to move far away from the other parent, with the children concerned, after separation and does not have the agreement of the other parent concerned or the Court’s approval to move.
Relocation cases are hard. On the one hand, Australia is a free country whose citizens are entitled to live wherever they want. On the other hand, under the Act, children have a right to know and be cared for by both their parents and to spend meaningful amounts of time with each of them.
In a relocation case, these two principles come into conflict and must be resolved by the Court. The High Court, the highest Court in this country, has said each relocation case is unique and requires careful and idiosyncratic consideration.
Such a detailed inquiry is simply not possible at the interim stage, and as such, it may be preferable to go back to the care arrangements which were in place prior to the unilateral relocation of a child or children.
This has important public policy considerations because the Court cannot condone the actions of a parent who takes things into his or her own hands. In addition, at the final hearing stage, when all the evidence is available, it would be fundamentally unfair if one parent has an advantage because he or she has been able to skew the hearing to his or her favour by an act of self-help.
Background
Mr Westcott (“the father”), and Ms Larson (“the mother”), are the parents of X, born in 2013, and Y, born in 2019. The parties commenced a relationship in 2012 and separated in November 2020.
It is the father’s case that at separation X and Y lived with their mother but spent at least alternate weekends with him and regular periods in school holidays. In his affidavit of 2 November 2022, the father deposes that he has not seen the children since 10 October 2022. Prior to that time, he and the mother had lived in the Region C area.
In his affidavit, the father deposes that on 9 September 2022, the mother told him that she wanted to move interstate to start over and she wanted to take X and Y with her. It is the father’s position that he told the mother clearly that he did not agree to the children leaving South Australia.
In this context, the mother said she was going to be homeless and, therefore, as a necessity she had to go to Melbourne. The father replied that he did not understand why that circumstance meant she had to go to Melbourne or take the children. It was his position, and he told her so, that if she wanted to go to Melbourne, she should leave the children with him.
It is Mr Westcott’s position that X was in his care from 9 September 2022 until 10 October 2022 and Y with him from 21 September 2022 to 10 October 2022. At that stage, it seems that both the mother and Y had COVID.
It is a significant element of the father’s case that if the mother had concerns about the father’s ability to care for the children, she would not have trusted them to him. On 11 October, the father sent the mother an emphatic email that he did not want the children to move interstate. He wrote that he wanted to stress how strongly he disagreed with the relocation. He wrote:
You definitely do NOT have my permission to do so.
I do not agree that because you are having financial difficulties that you have to take the kids with you.
They’re happy and settled now and receive more than enough love and support from you and I and our families.
If you like, you can leave the children here with me, and you can move and improve your life.
I would love to have them, and I promise I would let you see and talk to them whenever you wish.[2]
[2] See Annexure 1 to affidavit of Mr Westcott filed 2 November 2022.
It is the father’s evidence that he did not have any reply to this email. On 14 October, the father inquired about taking X to a birthday party. He received no reply from the mother. On 17 October, he asked where the children were and was told they were at school. On 21 October at 1.24 pm, he received this email from the mother:
We have moved interstate. The kids are happy and safe. I will let you be able to call them a couple of times a week.[3]
[3] See Annexure 4 to affidavit of Mr Westcott filed 2 November 2022.
What is clear from that email is that the mother did not say where she was going. In addition, it is the father’s position that although the mother said that he would be able to call the children a couple of times a week, he has not had that contact.
Necessarily it is a significant element of his case that the mother has treated his involvement which he says is extensive in the past with the children with disdain and as such, she has shown a limited insight into what is proper in being a parent, which includes supporting a relationship between the children concerned and the other parent.
Mr Westcott commenced these proceedings quickly on 2 November 2022. He is not a wealthy person, but he wasted no time in obtaining legal advice and in instituting these proceedings. The proceedings were personally served on the mother at an address in Suburb D, Victoria on 5 December 2022.
In his application, the father sought an urgent listing of his application and what is called a recovery order. A recovery order is a very significant order to make in respect of a child. In effect, police are directed to go and remove a child or children from a parent. For obvious reasons, that has the potential to be traumatic for a young child. Children are sometimes fearful of police officers.
It is something that is done as a last resort and only where it is the only thing that can be done to achieve the best interests of a child, usually in circumstances where the conduct of a parent has placed the children in great physical or emotional risk. The father also sought orders that the children live with him and spend time with the mother as agreed between the parties.
Given what he knew about the mother’s circumstances, Mr Westcott believed it was likely that Ms Larson had gone to stay with her brother, who is apparently a sportsman. The brother’s business is located in Suburb D, Victoria. As will be explained in greater detail later, Ms Larson has an interest in animals and has been employed as a tradesperson in the past.
When the case came on before me for the first time, I had something of a conversation with Ms Larson, who was honest, I believe, with me. Ms Larson disclosed to me she had a job with her brother as a supervisor. Significantly, she told me it was a fantastic job, and an amazing job opportunity which enabled her to be closer to her family.
In his affidavit and in some of his oral evidence to me, Mr Westcott indicated his view that the reason for the mother’s move was due to financial imprudence on her part whilst she had been living in the Region C area.
In this context, Ms Larson disclosed to me that she had lived in South Australia for many years, and, indeed, that must be the case, given when the parties commenced their relationship with one another.
Mr Westcott has deposed that he is aware that Ms Larson had been struggling financially, although she had a job as an carer at a nursing home in Town E and received some government support. It was his understanding that Ms Larson had a credit card debt of $18,000 and had been evicted from where she lived for non-payment of rent.
Mr Westcott also understood that she had a debt of $8500 at the City B Child Care Centre. In this context, he indicated that he had been paying $102 per week to the City B Child Care Centre to help pay off the debt and to ensure that Y could continue to attend there.
As I say, Mr Westcott is not well off financially. He is an employed tradesperson, who lives in rental accommodation. He lives in Town F. Until recently, X went to a private school in City B, and it is Mr Westcott’s evidence that that is something that is beyond the parties’ means.
In these cases, parties are required to complete what’s called a Parenting Questionnaire. Lawyers – and I do not mean any disrespect to Mr Laidlaw – do not particularly enjoy filling them in. They do not see that they have any great utility, but the Federal Circuit and Family Court (Family Law) 2021 say you have to do it.
The majority of the time they get their clients to fill them in, and that is what happened with Mr Westcott. He wrote about himself, and I have read his parenting questionnaire, and I am going to refer to it now because I found it quite informative because what is said is in Mr Westcott’s own words, without any involvement of a professional person.
He was asked about safety issues. He said that there were not any family violence orders in respect of him, the mother and the children. He was asked if he had any concerns about coming to Court, and he said:
Any previous occasions when I’ve mentioned Court proceedings, my allocated time with my children is taken away from me and I’m threatened that I will never see the children again.[4]
[4] See Questionnaire Parenting of Mr Westcott filed 2 November 2022 at page 3.
He was asked about other concerns to do with the safety of the children, and he said:
The only information I’ve received from my ex-partner is that my children are living interstate. I’ve not been able to see or speak to my children since 10 October. I don't know where they are or who is caring for them. I am very worried about them.[5]
[5] See Questionnaire Parenting of Mr Westcott filed 2 November 2022 at page 3.
He was asked about other members of the children’s family and how often the children saw them, and he said:
Grandparents’ at least once a month and always at school holidays. We usually have lunch or tea at nan and pap’s every couple of weeks.[6]
[6] See Questionnaire Parenting of Mr Westcott filed 2 November 2022 at page 6.
He was asked about his accommodation arrangements for the children. He said X and Y have their own room. Y sleeps in my room with me. He was asked about entertainment, and he said toys, trampoline, friends live in the street, local park. We always go out on Sundays and treat the kids to the park, the beach house or the beach.
In terms of support at home, he said I try to help my son with homework whenever I have custody. He really needs a lot of time, attention and help. In respect of other facilities he had for the children, he said the children have everything they need and get spoiled quite often. Bike tracks, skate park, local parks and gardens.
In terms of after-school care, he said that they had day care, grandparents’ care and he picked them up often. In respect of the financial support he provided for X and Y, he indicated that he paid $400 monthly in total and paid school fees, medical expenses and clothing.
It is certainly Mr Westcott’s view as indicated in the Parenting Questionnaire that he has been significantly involved in providing care for the children. However, I appreciate that Ms Larson does not necessarily agree that this is true.
As a consequence of various protocols between this Court and the authorities in South Australia, on 25 November 2022, a Court Registrar made orders requiring SAPOL and the Department of Child Protection to provide details of any interactions which they had had with the family.
At the same time, the registrar confirmed the interim hearing before me which had been fixed for 13 December 2022. On 7 December 2022, at another Court event which the mother and the father’s solicitor attended, the interim hearing was confirmed and the mother indicated she was attending upon a solicitor that afternoon.
As scheduled, the case came on for interim hearing at 2.15pm Australian Central Time on 13 December 2022. Ms Larson did not join the electronic meeting. I am satisfied she must have known about it. I rang her mobile telephone number, but it rang out. I was told she had an email address, and as a consequence, I sent the following email to her:
Dear [Ms Larson],
My name is Judge Brown. I’m a judge of the Federal Circuit and Family Court of Australia based in Adelaide. This afternoon, I have an application before me from your former partner, [Mr Larson].
He is asking me to make an order that the police remove [X] and [Y] from your care and deliver them to him. I am satisfied that you know about this application and that the Court case is listed now. Unless you contact me within the next 15 minutes, I will make the order that [Mr Westcott] is seeking. It is in your interests to contact the Court to discuss these issues directly. You can do so by dialling in using the number below.
At the same time, I arranged for a text message to be sent to Ms Larson on her mobile phone at the same time informing her of the email. To her credit, Ms Larson made the necessary arrangements to attend Court.
I spoke at length with her. She presented to me as a pleasant person. She described having experienced difficulty in obtaining legal advice. I indicated to her that my experience was that the Legal Aid services funded by the Commonwealth in the various states of Australia had a policy of not funding unilateral relocation cases unless special circumstances were demonstrated. She indicated that she had arranged a telephone consultation with a community-based legal service shortly. She confirmed that the children had not spoken with their father since October.
Significantly to me, she indicated that Y loved her father but X had decided he no longer wanted to see him. She further alleged that Mr Westcott had behaved in a bullying way towards her, and she had moved to Victoria, after a failed mediation, with the tacit approval of the mediator concerned.
In these circumstances, Mr Westcott’s solicitor pressed me to issue the recovery order as sought. I had also had some discussions with Mr Westcott when he gave some oral evidence to me. He told me that he did not want to do anything to traumatise the children, although he wanted to play a part in the children’s lives. He indicated that he thought Ms Larson was a good mother, but she was not very good with managing money, and she had got into financial trouble.
At this stage, I was aware that Ms Larson had not had a very significant period of time to prepare for the hearing, but it was also apparent that she had moved interstate with X and Y in the face of Mr Westcott’s obvious and emphatic objections. The case was urgent. Something had to be done.
It was also apparent to me that Ms Larson had done little, if anything, to support the children’s relationship with their father in the context of Y’s birthday, which had passed, and the forthcoming Christmas school holiday period. I also considered it was improbable that she would obtain legal representation if she had not already been able to do so.
In these circumstances, I made orders to the following effect. Ms Larson was directed to file and serve a response and an affidavit in support by 4.30 pm on 15 December, which was two days away. I arranged for her to have the blank forms, so she could complete the documents required.
I then adjourned the case until 16 December 2022 at 10 o’clock and made arrangements for Ms Larson to attend the hearing by electronic means. The mother did file some answering documents which were brief and prepared by herself and elaborated on the concerns that she had made against Mr Westcott. I also arranged for the parties to have electronic copies of documents that had been produced to the Court by SAPOL and DCP.
Ms Larson’s position can be summarised as follows.
·The father has a history of drug, alcohol and gambling addiction.
·X is frightened of his father because the father hits him. As a consequence, X does not want to see his father.
·The father had been tracking and stalking her through childcare and school apps and had come to her home and entered it illegally.
·The father had not been a consistent part of the children’s lives. In all these circumstances, she felt unsafe and watched in South Australia by the father.
·The father does not provide her with financial support.
·The paternal grandparents do not support her in any way, including financially.
·These factors made her job in South Australia untenable.
In these circumstances, she asserted as follows:
I did not do this move lightly as I thought it is the best direction for my children as [X] was getting beside himself with the way his father was treating him.
She further indicated that she was going to get a social worker’s report from a person called Ms G whom I understand is associated with Centrelink. She was also going to get some reports from X’s previous school as to his bad behaviour.
She said X was terrified of the thought of moving back to South Australia. She indicated that she was going to file for an intervention order. In addition, she said she had a lot of text messages which she thought the Court should see from Mr Westcott, but she could not get those text messages because her mobile phone was broken.
Accordingly, at this point, several significant issues of evidentiary controversy arise which I simply cannot be resolved in the context of these interim proceedings. These controversies can be summarised as follows:
·the nature and extent of the father’s involvement with the children;
·whether the father stalked or coercively controlled the mother;
·whether X is estranged from his father and, if so, why?
In this context, the Court must consider on the basis of the evidence available to it the following issues:
·Firstly, what was the extent of the emergency facing the mother in October of 2022 and was it of such moment that she really had no viable alternative open to her other than to move with X and Y to Suburb D;
·Secondly, what is the degree of risk that the father poses to the mother and children if they return to the Region C area and what is a proportionate response to the risks that were identified? Essentially, is the only proper response that the children remain in Victoria until final hearing;
·Thirdly, what are the consequences for the children’s relationship with their father if they remain in Suburb D until a final hearing;
Essentially, if that is the outcome, will it mean that the children do not have a proper level of relationship with their father because the mother is incapable of supporting it over such a significant distance?
These are all issues to do with the assessment of risk. There are risks arising in all of the possible permutations of the case. However, the Court cannot defer the assessment of this risk until all the evidence is to hand. Rather, it must grapple with the issues at the interim hearing stage as well as at the final hearing stage.
In a case called Deiter & Deiter,[7] the Full Court said:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[7] Deiter & Deiter [2011] FamCAFC 82 at [61].
In the context of the risk and emergency facing the mother in October of 2022, it is clear that she did not seek any form of Family Violence Order in South Australia and did not leave the state with the assistance of the authorities or a domestic violence service. She acted unilaterally. It is also clear to me that a powerful factor in the move was the job offered to her by her brother.
In this context, the SAPOL and DCP material must be assessed. DCP had no involvement with the family prior to February 2022. After that date, its involvement can be summarised chronologically as follows:
·On 9 February 2022, an incident occurred in the car park of a cricket ground when the parties had an argument about care arrangements for X and Y. In the presence of the children, Mr Westcott was described as being agitated. Significantly, police assessed the incident as high risk because the mother asserted the father had access to firearms. For obvious reasons, police take issues to do with firearms seriously.
·On or about 11 February 2022, police attended at the father’s home and seized an air rifle. They also saw a bong there. In his affidavit material, prior to this issue being canvassed, Mr Westcott deposed that the item in question was an antique which he had owned since childhood. He did not have any bullets for it. Nonetheless, he was charged with having an unlicensed firearm, and the matter proceeded to Court, resulting in him being placed on a good behaviour bond on 29 June 2022.
·In September 2022, X disclosed to a teacher at his school that the mother was planning to move him and his sister to Melbourne and told him not to tell his father. Later in the month, he was reported as coming to school sad with tears. He claimed his father had sworn at him when he had spilled some orange juice. He said he was scared of his dad and did not want to go home because his dad got mad at him. Whether this corresponded with the period X was living with his father is not clear to me.
The records include some verbatim things said to have been articulated by X. He said he did not want to go home to dad’s because he was scared. He was scared that dad would hurt him and that dad got angry. He further said that, “Dad gets mad about my reading,” and as previously indicated, X is a child who struggles at school to some extent. X said that mum said that he had anger issues, that is, X.
After lunch, the teacher – I think it was a teacher – spoke to him again, and again X said he did not feel safe:
“Dad doesn’t like it when I’m at mum’s, and mum doesn’t like it when I’m at dad’s.” When I asked how [X] knows this, [X] responded, “Because mum acts mad when dad is picking me up.” When I asked what this looks like, [X] stated, “She tells me all this stuff,” and stated, “Mum said no one can know except the family.” When I asked why, [X] said, “Dad can’t know.” [X] paused and stated, “Mum told us she is going to take me and my baby sister to a judge.” When I asked what this means, [X] stated, “Mum is taking us to Melbourne.” When I asked why, [X] stated, “Mum thinks it’s not safe with dad.” When I asked if this was for a holiday or to live, [X] said, “We’re moving there, but I accidentally told dad, and now dad is going to take us away.” [X] said, “I want mum to take dad to the judge, but I don't want dad to take mum.”
And it goes on. This is very concerning information. It has not been put to the father, and it indicates to some extent that X is a vulnerable child who has been placed at the heart of a significant parental conflict regarding moving to Melbourne.
In my view, it is also significant that the mother has said that Y adores her father. It also indicates to some extent that the mother has embroiled the children into issues of conflict between the parents, the issue for the Court being at this stage whether these disclosures made by X, which were not pursued by DCP or SAPOL, are of such sufficient moment to justify the children’s unilateral relocation to Melbourne.
Legal Principles Applicable
The legal principles applicable are complex. I will not endeavour to outline them exhaustively. In these circumstances, given this is a truncated hearing, I will attempt to outline the salient principles in an abbreviated bullet form.
·The best interests of the children are the paramount or most important consideration; see section 60CA.
·The Court is to ensure the children have the benefit of both their parents having a meaningful involvement in their lives; see section 60B(1)(a).
·Parents are encouraged to agree about parenting arrangements for their children, including in respect of major long-term decisions, which include changes to a child’s living arrangements which make it significantly more difficult for the child to spend time with a parent; see section 60B(2)(d) and (4).
·In determining the best interests of the child, the Court must consider two matters primarily, namely:
·The benefit to the child of having a meaningful relationship with both of his or her parents and
·The need to protect the child from physical or psychological harm from being subjected to, or being exposed to, abuse, neglect or family violence; see section 60CC(2).
·The Court is to give greater weight to protective concerns; see section 60CC(2A).
·The presumption of equal shared parental responsibility is open to rebuttal at the interim hearing stage if it is not appropriate for it to be applied;
·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;
·In assessing risk, the Court must put in place responses which are proportionate to the degree of risk so assessed. If the risk is unacceptable, it should not be accepted;
·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;
·It is not desirable for long-term arrangements for a child to be determined in an abridged interim hearing.
·As such, it is usually in the best interests of children that issues of relocation be determined at final hearing in the context of pre-existing care arrangements rather than in circumstances which have been engineered to the advantage of one parent through unilateral actions.
·However, in some cases, there may be circumstances of sufficient emergency which justify unilateral action by a parent, including relocation;
·In the context of an interim hearing, which necessarily precludes the Court from making concluded findings of fact, the Court must do its best to assess the degree of urgency confronting the parent concerned.
Family violence is a concept defined by section 4AB(1) of the Family Law Act 1975. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person, causing fear. It is the mother’s case that she has been controlled by Mr Westcott and is frightened of him.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she hears family violence or otherwise experiences the effect of family violence. Ms Larson asserts that the children have been exposed to family violence in February 2022 when they were present when their parents argued. It is also her case that the father has assaulted X.
In assessing cases involving allegations of family violence, the Court needs to be aware of the nature of family violence in general terms. Family violence by its nature is something that frequently occurs behind closed doors in the private confines of the family home.
Accordingly, it is very often difficult, if not impossible for there to be independent verification that it has occurred. However, the authorities are clear that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.[8] As I have already indicated, the Court is not in a position to defer its obligation to assess the implications of family violence for any child because of the limited nature of the evidence available to it.
[8] See Eaby & Speelman (2015) FLC 93-654 at 85,332 [21] per Ryan J.
Discussion
It is now necessary as best I can to apply those principles to the various matters of evidence which the parties have put forward. In my view, this is a particularly difficult case. The issues raised by the mother in respect of X are serious. He appears to be a child with some special needs who is acutely aware of the conflict between the parties. He is placed in an invidious position.
As I have indicated, he was privy to the decision that he was going to be moving interstate but was told not to tell his father about it. It is not usually helpful for a child to be the keeper of parental secrets. It is not helpful for a child to feel that he has to be aligned to a parent.
On the other hand, if he is frightened and traumatised by what has happened in his paternal home that is a matter of grave concern. But at the same time, it seems incongruent that the mother would voluntarily place the children with Mr Westcott in September. However, perhaps this is explicable by the fact that she had nowhere to live and had COVID. I do not know.
In addition, it is significant that the mother has indicted that the father has never assaulted her physically, but she is frightened of him because she feels controlled. In response, the father has asserted that he is only endeavouring to maintain a relationship with the children, whom he loves, in the face of what he views as the mother’s obstruction.
He points to the absence of any domestic violence order and the fact that he has not been charged with any offence or been spoken to by DCP or SAPOL in respect of the issues raised by X. The mother’s move of the children was clearly unilateral, and it is obviously the case that the father made it obvious to Ms Larson that he did not consent to the children moving to Victoria.
As I say, he also points to the fact that the mother was content to allow him to have X and Y for an extended period prior to the unilateral relocation, which in the submissions of his lawyer, Mr Laidlaw, must severely undercut her criticisms of Mr Westcott made now.
Overlying these issues is the mother’s concession made in response to questions I put to her that she had secured an amazing job in Victoria with her brother and Y adores her father. In my view, it is also telling that the mother has done nothing to support the children’s relationship with their father since she moved them. They have had no phone calls, no video calls, no proposals for the exchange of Christmas gifts, nothing.
In addition, although X naively said the mother was going to take the father to a judge, she has done nothing about bringing her concerns to the authorities of a Court and bringing an application to justify her actions.
Regrettably, it is invariably the case that it is the parent in a relocation case who has been left behind who has to bring the matter to Court, while the parent who has moved is happy to do nothing, certainly not take any action which may bring his or her actions under the scrutiny of the Court.
In all these circumstances, I am gravely concerned at the implications of Ms Larson’s move from the perspective of the children’s entitlement to the benefits of having a meaningful level of relationship with their father. At the present time, the mother’s actions have effectively severed that relationship.
As I have endeavoured to explain to both parties, the problem with unilateral actions so far as parenting arrangements are concerned is that such actions invariably result in difficult and controversial and sometimes unpredictable outcomes when the Court process becomes involved.
The father wanted me to issue a recovery order. He acknowledged that might be difficult for the children. Such unilateral actions are not helpful for children in terms of their emotional equilibrium or maintaining consistent and predictable parenting regimes for them. The Court cannot condone unilateral actions. They have far-reaching consequences.
In a case such as the present one, given what has happened, to a large extent, whatever the Court does in this case will not be beneficial for the children. I am saddened by that. I am acutely aware that the mother is subject to financial privations. She asserts she has nowhere to live in South Australia and no money to fund accommodation.
The father asserts the mother has friends in South Australia where she has lived for many years. He asserts that the mother can live with friends and these are the sorts of issues she should have thought about when she moved. He is not in a position to support her more financially than he already is doing. It is a terrible mess which I am called upon to sort out as best I can according to the applicable legal principles.
Conclusion
I acknowledge the difficulty, particularly the difficulty to the mother, in respect of returning the children to live in South Australia. However, in my view, the difficulties which confront the mother should not preclude the Court from reaching the following conclusions:
·Firstly, the circumstances facing the mother in October of 2022 were not of such gravity to justify her relocation of the children in the face of the father’s stringent opposition.
·Secondly, at this point, I do not consider the mother’s allegations of family violence are of sufficient moment that it would represent an unacceptable risk to X and Y if they returned to live in Adelaide pending the outcome of this case. The mother can seek a family violence order. Other orders can be made to protect her. The parenting relationship between the parties can be regulated by a proper regime.
·Thirdly, the proper forum to sort out the dispute between the parties is this Court in South Australia, and it would be contrary to public policy if the Court was, in effect, to endorse the mother’s unilateral action, which would be likely to make any final hearing about the issue of relocation otiose or redundant.
In my view, these factors necessitate the return of the children to Adelaide pending final hearing. I will give the mother time to return to Adelaide, and in this regard, I think a period of 21 days is appropriate. I appreciate that that will mean that the father will not be able to physically interact with the children at Christmas.
I regret that, but I do not think there is anything I can do about that other than to arrange some opportunity for the children to have some electronic communication with their father. I will direct that the mother return the children to an area within 10 kilometres of the City B Post Office at her own expense. If she elects to live with the children in such an area, the children can live with her until the final hearing. Otherwise, they should live with their father.
If the mother does not return the children by the date specified, which is 12 January 2023, the father will be authorised to apply for a recovery order without further reference to the mother, that is, the recovery order will be made and the police will be engaged to bring the father and the children to South Australia.
If the mother does elect to return to South Australia, I will direct that they spend seven consecutive days in the father’s care to make up for the time he has missed. As indicated, I will order that the father have telephone communication with the children each Sunday commencing 25 December 2022, which is Christmas Day, of course, and each Wednesday commencing 28 December 2022, with the mother to instigate the call to the father’s mobile telephone number at a time to be agreed between the parties, but failing agreement to be at 5.30pm.
I will make injunctions restraining the parties from abusing, assaulting or denigrating the other or subjecting the children to any form of physical discipline. This is to underline to the parties that the dispute between them is their dispute, not the childrens.
This is a case which requires the appointment of an independent children's lawyer, and I will make an order to that effect. Such a person will an honest broker between the parties, but more significantly will have a role of advocating on behalf of X and Y what he or she thinks is the best outcome for the children.
I will also direct that the parties themselves attend upon a Court Child Expert and the children also attend upon the expert to be interviewed with those interventions to occur on 8 and 10 March of next year. In my view, the appointment of an Independent Children's Lawyer and the child impact report which I have ordered will be tools which will assist the Court to get to grips with the issues that confront the parties and, indeed, X.
In those circumstances, I will list the matter for further directions on 22 March 2023 at 9.30am, and I will make the orders in the form which I will now release to the parties physically to Mr Laidlaw in Adelaide and electronically to the mother’s email address.
For all these reasons, the orders of the Court are as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 22 December 2022
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