White & Rolphe
[2023] FedCFamC2F 1372
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
White & Rolphe [2023] FedCFamC2F 1372
File number(s): ADC 3825 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 27 October 2023 Catchwords: FAMILY LAW – PARENTING – Interim proceedings – Child aged 3 years – Unilateral relocation of child from Adelaide to Queensland – Allegations of risk arising from the state of the Applicant’s mental health – Assessment of risk – Assessment of degree of emergency facing relocating parent – Nature of interim hearing – Application of presumption of equal shared parental responsibility – Best interests Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60H, 61DA Cases cited: AMS v AIF (1999) 199 CLR 160
B & B (1993) FLC 92-357
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Bale & Bale [2016] FCCA 680
D & SV [2003] FamCA 280
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Heath v Hemming (No 2) [2011] FamCA 749
Malcolm & Monroe & Anor [2011] FamCAFC 16
Mazorski & Albright (2007) 37 FamLR 518
MRR v GR [2010] 240 CLR 461
Slater & Light [2013] FamCAFC 4
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 109 Date of hearing: 18 October 2023 Place: Adelaide Counsel for the Applicant: Ms Dichiera Solicitor for the Applicant: Stanley & Co Counsel for the Respondent: Ms Black Solicitor for the Respondent: Ashkan Tai Lawyers ORDERS
ADC 3825 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITE
Applicant
AND: MS ROLPHE
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 OCTOBER 2023
UPON NOTING THAT
A.The Applicant agrees for the sum of $30,000.00 to be released to the Respondent from the B Conveyancers trust account.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.Within twenty-one (21) days of the date hereof, the Respondent do cause the child X born in 2020 (‘the child’) to reside within a radius of fifty (50) kilometres of the Adelaide CBD.
2.The child do live with the Respondent in Adelaide.
3.Upon compliance with paragraph 1 herein the, child spend time with the Applicant as follows:
(a)10:00am to 4:00pm on Saturday of each week, or on such other day of each week as nominated by the Applicant in writing to accommodate her work roster; and
(b)At such other times as agreed between the parties in writing.
4.Handovers do occur at such location to be agreed between the parties in writing, or in default of agreement at such location which is equidistant between the parties’ respective residences.
5.In the event that the Respondent fails to comply with paragraph 1 herein, then:
(a)The child live with the Applicant in Adelaide; and
(b)The child spend time with the Respondent on dates and times to be agreed between the parties in writing.
6.The child communicate with the Applicant by way of FaceTime communication each Monday, Wednesday and Sunday between 4:30pm and 5:30pm, or on such other days and at such other times as the parties agree in writing,
7.The parties be restrained by way of injunction from changing the child’s principal place of residence from a distance greater than fifty (50) kilometres from the Adelaide CBD pending further order from the Court.
8.The Applicant has leave to file an Affidavit in Reply to the affidavit of the Respondent filed without leave on 24 September 2023 on condition that the said affidavit is confined to the issues addressed in submissions at the hearing on 18 October 2023.
9.Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2020 (‘the child’) 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 seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said child(ren) such as to be in a position to make submissions to the Court on the adjourned date.
10.Pursuant to section 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the child X born in 2020 (‘the child’) 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 1 February 2024 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 9:00am on 2 February 2023. Specific details regarding the attendance of the parties and the child/ren 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 child/ren 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 child 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 November 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
16.Pursuant to order 10 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/ren and any matters (such as the child/ren’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/ren;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child/ren.
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, and otherwise the following:
(a)Information provided to the Court by the respective Family Law Information Sharing Officers from SAPOL and the Department of Child Protection; and
(b)If applicable, any section 91B report provided by the Department of Child Protection.
19.Ms White has liberty to apply on seven (7) days notice for the issuing of a Recovery Order pursuant to section 67Q of the Family Law Act 1975 (Cth).
20.The proceedings be adjourned for directions to Monday, 18 December 2023 at 9:30am, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
21.The Interim Orders sought by the Applicant in her Initiating Application filed 18 August 2023 at paragraphs 1, 2, 3, 4, 6, 7 and 8 be dismissed, and the Interim Orders sought by the Respondent in her Amended Response to Final Orders filed 25 September 2023 at paragraphs 1, 1 (sic), 2, 3, 4, 5, 6, 8, 9, 10 be dismissed.
22.Each party have leave to file and serve one further affidavit (limited to five (5) pages in length) updating the Court as to their circumstances and proposed orders for Christmas 2023 such affidavit to be filed and served no later than 11 December 2023.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The Applicant in these proceedings is Ms White. The Respondent is Ms Rolphe. Ms White and Ms Rolphe are the parents of one child, X born in 2020 (‘X’).
The parties are in dispute in relation to interim and final orders for X.
At the heart of the dispute is a desire by Ms Rolphe to remain living in Queensland with X pending a resolution of these proceedings. This proposal is opposed by Ms White who seeks that X be returned to reside in South Australia.
For the Reasons set out herein the Court will order that X return to reside in South Australia and make orders regulating X’s care prior to Trial.
BACKGROUND
Ms White and Ms Rolphe have filed competing parenting applications in relation to X, aged three years.
Ms Rolphe is the biological parent of X, who was conceived through IVF. Ms White is listed on X’s birth certificate as his ‘Co-Parent.’ I am satisfied that each party is to be regarded as X’s parent.[1]
[1] Family Law Act 1975 (Cth) s 60H.
The parties are aged 31 years and 37 years respectively. Ms White is employed by C Company and works to a roster. Ms Rolphe has worked in a business owned and operated by Ms White’s parents. Given the nature of Ms White’s employment, it is my impression that Ms Rolphe has been the more ‘available’ parent to X when he was not otherwise in childcare.
The parties commenced a relationship in 2017 and married in 2019. The parties separated for the final time in or about September 2022.
Save for a period of about 12 months where the parties lived in City D, they have lived in South Australia for the duration of their relationship.
At separation, Ms Rolphe and X remained living in the parties’ home at City E in Region H.
In mid-2023, the party’s home was sold. For a brief period, Ms Rolphe and X moved into a house located on a property owned by Ms White’s parents at Town F in Region H. Ms White had moved into a property at Town G. Until Ms Rolphe travelled to Queensland with X, both parties continued to reside in Region H .
It is Ms White’s contention that following final separation, X lived with Ms Rolphe and spent time with her on alternate weekends from 5:00pm Friday to 5:00pm Sunday and in the intervening week on Monday, Tuesday and Wednesday from 2:00pm to 6:00pm. She further contends that during the parties’ relationship, both parties were involved in the care of X when not otherwise working or when X was attending at childcare for up to four days per week. Ms White asserts that X spent overnight time at her home at Town G where she had set up a bedroom for X.
On or about mid-2023, Ms Rolphe travelled to Queensland with X with Ms White’s consent. It is Ms White’s position that Ms Rolphe was due to return to Adelaide with X a month later.
In mid-2023 Ms White alleges that she received a telephone call from Ms Rolphe informing her that she would not be returning to Adelaide with X.[2] After formal communications from Ms White’s solicitor to Ms Rolphe failed to resolve the matter, a formal application seeking X’s return to South Australia and other parenting orders was filed on 18 August 2023.
[2] See the Affidavit of Ms White filed 18 August 2023 at paragraph 7.
Ms Rolphe opposes the application to return with X to South Australia. She seeks to remain living in City J, Queensland near her family.
Given the urgent nature of the proceedings, the parties are yet to attend with a Court Child Expert or engage in any Court-based dispute resolution conferences to try to resolve the matter without Court intervention.
DOCUMENTS RELIED UPON AT HEARING
Ms White filed an Outline of Case Document (Interim Hearing) on 12 October 2023 which sets out that she relies upon following documents:
(1)Initiating Application filed 21 August 2023;
(2)Affidavit of Ms White filed 18 August 2023;
(3)Affidavit of Ms Rolphe filed 24 September 2023; and
(4)Affidavit of Ms K filed 12 October 2023.[3]
[3] See the Court’s rulings made 18 October 2023.
Ms Rolphe filed an Outline of Case Document (Interim Hearing) on 11 October 2023 which sets out that she relies upon following documents:
(1)Amended Response to Initiating Application filed 25 September 2023;
(2)Affidavits of Ms Rolphe filed 24 September 2023 and 16 October 2023;[4]
(3)Notice of Child Abuse, Family Violence and Risk filed 14 September 2023; and
(4)Affidavit of Ms L filed 16 October 2023.
[4] See the Court’s rulings made 18 October 2023.
‘Exhibit R1’ being information provided by the Department of Child Protection Co-Located Officer dated 16 October 2023 was tendered during the hearing.
ORDERS SOUGHT BY THE PARTIES
Applicant Mother – Ms White
I summarise the interim orders sought by Ms White as follows:
(1)That the child X be delivered up to her;
(2)That a Recovery Order do issue in the event that Ms Rolphe fails to deliver up X;
(3)That in the event that Ms Rolphe does not return to live in South Australia, then X live with Ms White and spend time with Ms Rolphe during periods as agreed between the parties;
(4)That if Ms Rolphe returns to live in South Australia, X live with Ms Rolphe and spend time with Ms White on alternate weekends from 5:00pm Friday to 5:00pm Sunday, and in the intervening week from 2:00pm to 6:00pm each Monday, Tuesday and Wednesday;
(5)That Ms Rolphe be restrained by way of injunction from:
(a)Removing or taking possession of X save and except for the purposes of spending time as ordered by the Court; and
(b)Removing X greater than a distance of 50 kilometres from the Adelaide CBD.
Respondent Mother – Ms Rolphe
I summarise the interim orders sought by Ms Rolphe as follows:
(1)That Ms Rolphe have sole parental responsibility for X and that X live with her in Queensland;
(2)That X spend supervised time with Ms Rolphe in Adelaide:
(a)From 10:00am to 3:00pm on Friday, Saturday and Sunday every three months;
(b)That Ms Rolphe accompany the child on flights with Ms White being responsible for the costs of the child’s airfares only;
(c)That in the event that Ms White is unable to spend time with X, then notice is to be provided to Ms Rolphe within 28 days of the scheduled visits; and
(d)That the maternal grandmother (Ms White’s mother) supervise such time and should she not be available to supervise, then supervised time do occur at a supervised contact centre;
(3)That X spend supervised time with Ms White in Queensland upon Ms White’s request provided that:
(a)Ms White provide to Ms Rolphe 14 days prior of her intention to spend time with the child;
(b)That time with the child be from 10:00am until 3:00pm on a non-school day with handover to occur at Ms Rolphe’s residence;
(c)That time with X be from 4:00pm until 6:00pm on a school day with changeover to be at Ms Rolphe’s residence; and
(d)That time be supervised by a person to be agreed between the parties;
(4)That pursuant to section 62G of the Act, an “expediated” (sic) Child Impact Report be prepared;
(5)That unless otherwise agreed between the parties, Ms Rolphe facilitate FaceTime calls between the child and Ms White between 4:30pm and 5:00pm on Monday, Wednesday and Sunday;
(6)That Ms White enrol in and attend to completion of a number of parenting courses including the “Triple P” program or “1, 2, 3 Magic”;
(7)That within two months of the date of these orders Ms White attend upon a psychiatrist for the purposes of assessing her mental health; and
(8)That Ms White be restrained from exposing the child to her firearms and tasers, and her current partner.
Additional Orders / Notations
During the course of the hearing:
(1)Ms White offered for Ms Rolphe to receive the sum of $30,000.00 from the B Conveyancers’ trust account where the net proceeds of sale of the City E property are currently held; and
(2)Neither party opposed the appointment of an Independent Children’s Lawyer for X.
MS WHITE’S POSITION
Following X’s birth, Ms White contends that the parties had “an effective and positive co-parenting relationship.”[5] Ms White alleges that around seven months after X’s birth, Ms Rolphe became more controlling in making decisions about X’s care without any consultation with Ms White as X’s co-parent. Ms White argues that Ms Rolphe’s controlling behaviour continued post-separation and that the time spending arrangements had been “dictated” to her “without any sensible or mature consultation”.[6]
[5] See the Affidavit of Ms White filed 18 August 2023 at paragraph 46.
[6] See the Affidavit of Ms White filed 18 August 2023 at paragraph 48.
It is Ms White’s position that the parties separated in or about September 2022. At separation, Ms Rolphe and X remained residing in the City E property until it was sold in or about mid-2023. Ms White moved to a property in Town G.
Following separation, Ms White contends that an agreement was reached whereby X spent time with her overnight on each alternate weekend and for three afternoons in the intervening week.
Further, she argues that an agreement was reached for Ms Rolphe and X to travel to City J, Queensland for a holiday to visit Ms Rolphe’s family departing mid-2023 and return to Adelaide a few weeks later. In mid-2023, Ms White received a telephone call from Ms Rolphe advising that she would not be returning to Adelaide with X as anticipated.
In mid-2023 and in response to a text message regarding handover arrangements, Ms Rolphe responded to Ms White confirming that she and X were “…still on holidays in QLD.”[7]
[7] See the Affidavit of Ms White filed 18 August 2023 at ‘Annexure -3’.
Ms White immediately consulted a solicitor. Correspondence was forwarded to Ms Rolphe requesting that X be returned to Adelaide by mid-2023. Ms Rolphe did not comply with this request and proceedings were instituted by Ms White on 18 August 2023.
It is Ms White’s position that as X’s parent, she did not consent to X being relocated to Queensland permanently and that X should return to reside in Adelaide, South Australia where he has lived for his entire life. Ms White contends that she was misled by Ms Rolphe and now believes that it was Ms Rolphe’s intention to relocate to Queensland using the holiday as a “ruse” to deceive her.[8]
[8] See the Affidavit of Ms White filed 18 August 2023 at paragraph 22.
Ms White maintains that X’s relationship with her will be irreconcilably altered if Ms Rolphe is permitted to remain living in Queensland with X. Ms White seeks the primary care of X in the event that Ms Rolphe determines that she will not return to reside in South Australia pending final determination of these proceedings.
Ms K is the mother of Ms White and a grandparent to X. She deposes to having a “close relationship” with both of the parties and with X. In her affidavit, Ms K confirms that Ms Rolphe’s employment with the family business “M Company” remains open and that Ms Rolphe could continue in that employment in a full-time capacity. In addition, Ms K offers for Ms Rolphe and X to reside in the house situate on her property at Town F where Ms Rolphe and X lived for a brief period following the sale of the City E property earlier this year.
MS ROLPHE’S POSITION
Ms Rolphe contends that she has previously had a “good and respectful relationship” with Ms K. I infer that it came as something of a surprise to Ms Rolphe that Ms K swore an affidavit in support of her daughter, Ms White. Ms Rolphe is now concerned about whether or not her employment with Ms K is viable and suggests that she is considering employment elsewhere.
Ms Rolphe argues that she should be allowed to remain living in Queensland where she has the support of her family. She alleges that prior to “moving” to Queensland she was solely responsible for X’s care and alleges that Ms White was unreliable in terms of spending time or caring for X.
Ms Rolphe argues that X has now formed a close bond with her family since travelling there. Further that Ms Rolphe has now found comfort in her family’s emotional support after the breakdown of her relationship with Ms White and the sale of the parties’ former home.
Ms Rolphe argues that to return to Adelaide and find accommodation would be financially challenging especially in circumstances where her ongoing employment with Ms K may be in jeopardy.
Ms Rolphe argues that Ms White has never spent overnight time with X. She contends that offers of face-to-face time in Queensland have been offered but never accepted by Ms White. Ms Rolphe alleges that Ms White had difficulty forming a bond with X after his birth as “she had no biological connection to him.”[9]
[9] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 19.
As X grew older Ms Rolphe alleges the relationship developed “more like friends” rather than as a parent.[10]
[10] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 20.
Ms Rolphe refers to a separation that occurred in January 2022 when Ms White left the City E home and stayed with her mother for a period of eight weeks alleging that Ms White was “unable to commit to the responsibilities of a wife and mother.” A further incident is referred to which is said to have occurred in late 2022 when Ms White moved out of the City E property and became uncontactable. Reference is made to an email allegedly forwarded by Ms White to Ms Rolphe wherein she refers to the fact that she was “struggling” and intended to seek support regarding her mental health.[11]
[11] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 29
Ms Rolphe argues that she had informed Ms White prior to her departure that she intended to go to Brisbane to for a minimum of three weeks as she did not have anywhere to live. Further, that Ms White was aware of her intention to relocate to Queensland. She contends that attempts were made to discuss with Ms White that she would not be returning to Adelaide.
Ms Rolphe admits that she advised Ms White that she would be returning to Adelaide on or about mid-2023 but goes on to refer to having told Ms White about her intentions to relocate to Queensland.[12]
[12] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 42(d).
In relation to Ms White’s new relationship with her partner “Ms N”, Ms Rolphe makes a general allegation that she is aware that “Ms N had a drug and alcohol addiction” but goes on to state that she was unaware if this was “still the case”.[13]
[13] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 45.
Ms Rolphe alleges that she is worried about Ms White’s mental health. She deposes that during their relationship there were times when Ms White ceased all contact with her family and friends. Further that the nature of Ms White’s job as a community worker is stressful and “affects her mental health.”[14]
[14] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 49.
Further, that Ms White has on “many occasions” advised that she “isn’t coping” and was seeking help from a counsellor.[15] Because of this Ms Rolphe deposes to being “worried” that Ms White’s mental health is affecting her communication with X and to leave X in her care would place him at risk.[16]
[15] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 50.
[16] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 51.
Ms Rolphe alleges that after FaceTime calls with Ms White, X displays behaviour which she considers to be unusual including X on one occasion “hiding under the table with his pants down” during a FaceTime telephone call.[17]
[17] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 56.
Notwithstanding those concerns, Ms Rolphe facilitated X spending time with Ms White unsupervised after separation. This was said to be ameliorated by the fact that the time spending occurred in public areas such as “parks and restaurants.”
In paragraph 61 of her affidavit filed 24 September 2023, Ms Rolphe alleges; “I am aware that Ms White is currently having suicidal thoughts. Ms White had alike thoughts after separation.” No further particulars or details are pleaded by her in support of this allegation.
Since separation Ms Rolphe alleges that Ms White has never cared for X overnight. Further, she alleges that Ms White has “spent days without seeing or talking to X. This was due to Ms White’s mental health and not being able to make time to see him.”[18]
[18] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 68.
Ms Rolphe alleges that she is “worried that Ms White does not have the capacity to take care of X especially in circumstances whereby she hasn’t cared for X for more than four hours, on average.”[19]
[19] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 78.
In relation to her travel to Queensland, Ms Rolphe agrees that initially she determined to travel to Queensland to “spend time with my family” as she required financial and non-financial support.[20] Further, she admits to having advised Ms White that she would be in Queensland “for a minimum of three weeks” and did not have any “future living arrangement plans”. Whilst in Queensland, and “surrounded by supportive family and friends” Ms Rolphe admits that she “came to realise that it will be in X’s best interest to remain here.”[21]
[20] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 81.
[21] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 84.
It is Ms Rolphe’s observation that X is now “thriving” in Queensland and has been able to “connect with his Indigenous heritage.”
Ms L is the biological maternal grandmother of X. Since X travelled to Queensland Ms L deposes to having formed a “close bond” with X including communications in their traditional language. Ms L is an O woman and her traditional Aboriginal lands are Region P in Queensland.
Ms L deposes that she is currently supporting Ms Rolphe with her legal fees and by way of ongoing household expenses. She deposes that Ms Rolphe currently does not pay rent nor contribute toward any utility bills. In addition, Ms L assists with the care of X when needed. It is Ms L’s evidence that since Ms Rolphe has commenced living with her she appears “less stressed and anxious.” Ms L has offered that Ms Rolphe and X can continue to live with her for as long as required.
NATURE OF AN INTERIM HEARING
It is important for the parties to understand that this is an interim hearing. The evidence available at an interim hearing is limited in nature. I do not have the opportunity to hear evidence from the parties or to see them cross-examined. I am unable to make findings about the evidence or to test the veracity of each parties’ allegations.
Given the nature of the hearing I am unable to resolve the various factual disputes between the parties. In this case there are many controversies between the parties not the least of which is the nature of X’s relationship with each of his parents and the allegations of risk.
These controversies will be greatly assisted by the preparation of a Family Report and submissions made on behalf of X by his own legal representative.
The Full Court has described the nature of an interim hearing as being significantly curtailed. At hearings such as this the Court is cautioned against being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[22] Instead the Court must look to less contentious issues such as any facts which are either agreed or any issues which are not in dispute.
[22] Goode & Goode (2006) FLC 93-286, 80,901, [68].
Based on the information filed by each of the parties the agreed issues can be summarised as follows:
(1)The parties and X had lived in Adelaide during their relationship;
(2)Both of the parties worked and X was in childcare for a period of time prior to separation;
(3)After separation Ms Rolphe and X remained living in the City E home. Further, the parties continued with their employment as they had done prior;
(4)X was cared for principally by Ms Rolphe and also went into childcare up to four days per week. X also spent time with Ms White. The parties do not agree the frequency and duration of time spending other than portions of this time were during the day and unsupervised;
(5)The parties had agreed for Ms Rolphe and X to travel to Queensland for a holiday departing mid-2023 for a period of three weeks; and
(6)Ms Rolphe has remained in Queensland with X despite agreeing that the intended visit was for the purposes of a holiday of limited duration.
ISSUES TO BE DETERMINED
I assess the following issues to be determined at this interim hearing:
(1)Should Ms Rolphe and X live in South Australia or Queensland at this interim stage;
(2)What parenting arrangements should be put in place for X dependent on the outcome of where X will be living including an assessment of any question of risk;
(3)Should an order be made for sole parental responsibility as sought by Ms Rolphe;
(4)Should any of the parenting arrangements for X be made subject to conditions or injunctions;
(5)Whether or not a recovery order is necessary; and
(6)Whether Ms Rolphe should be restrained by way of injunction form removing the child greater than a distance of 50km from the Adelaide CBD.
These are difficult issues which cannot be resolved to finality in the context of an interim hearing given the quality of the evidence and in the absence of a Family Report. Given the urgency of the situation however, the Court must assess the degree of risk for X and make orders that the Court considers to be in his best interests at this interim stage.
LEGAL PRINCIPLES
The legal principles in this case are complex involving competing applications with both parties maintaining that the orders sought by each of them are in X’s best interests. In addition, Ms Rolphe’s application to relocate to Queensland with X brings into question the ability of an individual’s right to freedom of movement.
However, the child’s best interests is the most important consideration.[23]
[23] Family Law Act 1975 (Cth) s 60CA.
The same principles are said to apply both at the interim and final stage. The distinction obviously is that interim hearings do not determine final and long-term arrangements in relation to children, whereas final proceedings do. At this interim hearing, I am required to assess the facts said to warrant an interim unilateral relocation as best I can given that there is no cross-examination and the Court cannot make findings of fact.
The aims and principles of the Act are set out in section 60B of the Act. Those aims and principles direct me to consider the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they spend with their child, commensurate with the need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence. Parents are encouraged to agree about future living arrangements including major long-term issues which include topics such as a child’s living arrangements, which may make it more difficult for the child to spend time with the other parent.[24]
[24] Family Law Act 1975 (Cth) ss 60B(2)(d), (4).
The starting point for the Court’s consideration, as it is in any parenting order, is to consider whether the parents concerned should have equal shared parental responsibility.[25] The presumption is open to rebuttal, at the interim stage, if the Court considers that it is not appropriate for it to be applied.
[25] Family Law Act 1975 (Cth) s 61DA.
In considering the child’s best interests, the Court is then directed to a list of matters set out in section 60CC of the Act.
There are two categories of matters that the Court must consider in section 60CC, namely the primary considerations and the additional considerations.
There are two primary considerations being:
(a)The benefit to the child of having a meaningful relationship with both of his parents; and
(b)The need to ensure that the child is protected from harm - both physical and psychological harm – which may arise if the child concerned is exposed to any kind of abuse, neglect and family violence.
Section 60CC(2A) directs the Court to “give greater weight” to the primary considerations addressing protective concerns. This does not mean that the Court is to disregard the benefits likely to arise from a meaningful relationship. Rather, the Court must give greater weight to protecting children from harm. In assessing the degree of risk the Court must look to the degree of probability that a harmful event will occur in the future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.[26]
[26] Dieter & Dieter [2011] FamCAFC 82.
In assessing risk, the Court must put in place responses that are proportionate to the degree of risk assessed. If a risk is considered to be unacceptable then it should not be countenanced by the Court.
In considering the benefit to the child having a meaningful relationship with each of his parents, the Court has often explained that the term “meaningful” is to be given its ordinary definition. In the decision of Mazorski & Albright,[27] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[27] (2007) 37 FamLR 518, 526.
Relocation cases by their very nature have long term implications for the quality and nature of a parents’ relationship with a child. This is even more so when the child is young and vulnerable.
The Court should endeavour not to determine long term arrangements which may have far reaching implications at an interim hearing such as this. The Court has favoured an approach that relocation cases be determined at a final hearing rather than in circumstances which may have been put in place by one parent through unilateral actions and over the objections of the other.
Section 60CC(3) of the Act then sets out the additional considerations which are more numerous.
In this case I assess that subparagraphs (b), (c), (ca), (d), (e), (f), (g), (h), (i) and (l) of Section 60CC(3) are relevant to this case and I bring them to account in the orders that I make at this interim stage. The sheer number of subparagraphs which arise for consideration in relation to the child’s best interests speaks to the complexity of the issues in this case overall.
Although the Court is directed to give consideration to many factors ultimately it is the best interests test which remains paramount. My duty is to deliver individual justice, for the child affected, in every case.[28]
[28] B & B: Family Law Reform Act 1995 (1997) FLC 92-755.
Assessment of Risk
At this stage, my responsibility is to assess the degree of risk arising from the competing applications and orders sought by each of the parties at this interim stage. I cannot, however, ignore the risk of a child being deprived of an otherwise meaningful relationship with a loved parent on the basis of untested allegations or untested evidence.
In making the required assessment of risk, I am required to assess the degree of possibility that a harmful event will occur and what will be its level of severity to any individual, particularly any child who will be potentially affected by it.[29]
[29] Deiter & Deiter [2011] FamCAFC 82, [61].
Essentially, the Court is required at this juncture to assess the risk arising for any child on the material currently before it, and I cannot defer that assessment until a later stage on account of deficiencies in the available evidence. Rather, I must as best as I can, assess the nature and quality of the risk arising and put in place a response which I consider to be proportionate to the degree of risk so assessed. Given the limited nature of the evidence available to me at this hearing which has not been tested, I am at pains to point out to each of the parties that consideration of a way forward cannot be deferred. However, in carrying out this assessment, obviously the best interests of the children remain the paramount consideration.
I must look at the evidence and consider what is the likelihood of some deleterious outcome occurring with or without precautions. For obvious reasons highly conflicted coparenting relationships, albeit of recent event for this family, cannot be easily neutralised at this early stage.
I note that the Court is frequently called upon to assess all manner of risks to children concerned in proceedings coming before it. In the decision of Slater & Light [2013] FamCAFC 4 at paragraph 37, the Full Court expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
In the decision of B & B (1993) FLC 92-357 at 79, 780, the Full Court said as follows:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
In this case Ms Rolphe says that risk arises by virtue of her allegations regarding Ms White’s alleged mental health problems, exposure to a person having had alleged drug and alcohol problems and alleged exposure to Ms White’s firearm and taser issued by virtue of her employment with C Company.
Ms Rolphe’s affidavit makes oblique references to Ms White “struggling” and seeing a “councillor” (sic) in the email dated 19 October 2022.[30] The Court is invited to draw an adverse inference from the fact that Ms White turned off her mobile telephone and was uncontactable or forgot to collect X from childcare. Further risk is said to arise because Ms White allegedly finds her job stressful, which in turns impacts on her mental health.[31]
[30] See the Affidavit of Ms Rolphe filed 24 September 2023 at ‘Annexure -1’.
[31] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 49.
Ms Rolphe alleges that she is aware “that Ms White currently is having suicidal thoughts “and that “Ms White had alike thoughts after separation.”[32] No further detail is provided such as how she became aware, who may have informed her and when this is said to have occurred.
[32] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 61.
Further, Ms Rolphe alleges that she is “aware that Ms N had a drug and alcohol problem” but “is unaware if this is still the case.”[33] Again, no further particulars are provided or even the source of the disclosure.
[33] See the Affidavit of Ms Rolphe filed 24 September 2023 at paragraph 45.
In this case and assessing the allegations of risk, I am not satisfied on the evidence that supervision of Ms White’s time with X is warranted or in X’s best interests. I observe that even on her own case Ms Rolphe had been providing unsupervised, daytime contact prior to her departure to Queensland despite these alleged concerns.
Relocation
Any case involving a proposed relocation of a child is difficult. Both parties put positions before the Court which are understandable and deeply felt. Whatever the outcome, one of the parties will undoubtedly feel aggrieved by the Court’s decision. If relocation is permitted, then the nature of the relationship between the child and the party left behind will undoubtedly be changed given that the frequency of time spending cannot occur. Relationships with extended family members and important persons to the non-relocating party will also be impacted. The remaining party may also be denied an opportunity to engage in the child’s schooling or extracurricular activities. Practical issues can arise with respect to travel and the cost of travel.
Correspondingly, orders that require an unsuccessful party to remain living in a location other than their preferred one will also result in similar loss and resentment. A party left without perceived support or an opportunity to move on with their life may suffer a deleterious consequence in relation to their own parenting capacities.
Unfortunately, relocations are of such a nature that it will inevitably involve the parties viewing the result as either a “winner” or a “loser”. In the absence of compromise, the Court is left to make a very difficult decision.
Again, it is important for the parties to understand that this Court can only make decisions in relation to the best interests of children. The Court cannot usually prevent the freedom of movement of an adult. This principle was recognised by the High Court of Australia in AMS v AIF which directs Trial Judges to consider the “right of freedom of movement” of an adult but always subject to the best interests of the child.[34] A party seeking to relocate does not need to establish “compelling reasons.”[35] Nor is there an onus on the other party to show reasons why the relocating party should not do so.[36]
[34] AMS v AIF (1999) 199 CLR 160.
[35] U v U [2002] HCA 36; D & SV [2003] FamCA280, [25].
[36] Malcolm & Monroe & Anor [2011] FamCAFC 16.
The Act has no specific sections referring to “relocation”. A proposal by one party to relocate with a child is simply one factor to be considered amongst many others in order to achieve a result which is in the best interests of the child. The Court must consider the parties competing proposals but is not bound by them in determining the child’s best interests.[37] The Court must consider alternative options to restricting the movement of a party, particularly where one option is to compel a primary carer to undertake that role in a place not of their choosing. Consideration of all alternatives must necessarily include a consideration as to whether the other party is able to move with the relocating party.
[37] U v U [2002] HCA 36.
The High Court has also emphasised the requirement of parenting orders to be both in the child’s best interests and also “reasonably practicable”.[38]
[38] MRR v GR [2010] 240 CLR 461.
In Heath & Hemming (No 2),[39] his Honour Justice Kent stated:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.[40]
[39] Heath v Hemming (No 2) [2011] FamCA 749.
[40] Heath v Hemming (No 2) [2011] FamCA 749, [101].
In the decision of Bale,[41] the Court provided an overview of relevant Full Court decisions in relation to matters involving a proposed relocation. The principles were summarised as follows:
•Relocation matters are to be determined generally with reference to Part VII of the Act;
•The child’s best interests remain the paramount but not the sole consideration;
•A relocation proposal is to be evaluated in the context of the necessary findings in relation to the child’s best interests (section 60CC matters) and, where appropriate, section 65DAA (reasonably practicable);
•The Court must consider the parties proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child.
•Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
•An applicant for relocation need not show “compelling reasons” in support of the relocation but must produce probative evidence which permits the Court, on balance, to find that a parenting order involving relocation is in the best interests of the child; and
•The child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but such that an adult’s “right” must ultimately defer to the child’s best interests.[42]
[41] Bale & Bale [2016] FCCA 680.
[42] Ibid [73].
These considerations apply even at this interim stage.
CONCLUSION
These proceedings have come before the Court with a degree of urgency and prior to the parties attending any dispute resolution conferences with a Court Child Expert.
There is a paucity of evidence in relation to Ms White’s work rosters or her living arrangements. Neither party has filed responding affidavits answering the affidavits of the other.
In this case Ms Rolphe decided to remain in Queensland with X after travelling there for a holiday. Her reasons for doing so are legitimate in that she seeks to be close to, and seek comfort from, her family. Ultimately it may be the Courts decision at Trial that it is X’s best interests to allow him to live with Ms Rolphe in a place which is a great distance away from his other parent, Ms White. That argument is for another day.
The Court cannot countenance the unilateral decision of one parent to move a child away from contact with another parent and to then ask the Court to accept this as some form of status quo. The best interests of X can only be served by a testing of the evidence at trial. Pending Trial, I conclude that X should be returned to reside in South Australia.
Further, given X’s young age the Court should not approve a decision which will have long term ramifications in relation to X’s right to have a meaningful relationship with Ms Rolphe as the Act compels the Court to consider.
The Court proposes to allow Ms Rolphe an appropriate period of time to make arrangements to return X to South Australia. There is an offer of accommodation made by Ms K. Ms Rolphe may feel uncomfortable staying there in the longer term but she has stayed there previously when required to do so. In addition, Ms White has offered for Ms Rolphe to receive a not insubstantial sum from the net sale proceeds of the City E home which I will include as a notation to these orders.
Upon X’s return to South Australia and doing the best I can given the provisional nature of the evidence and the lack of evidence about Ms White’s work roster, I propose for X to spend one full day per week with Ms White on an unsupervised basis. FaceTime calls three times per week shall continue.
I decline to make an order at this interim stage for parental responsibility. Ms Rolphe seeks an order for sole parental responsibility on an interim basis but seeks a final order for equal shared parental responsibility. Ms White does not seek an interim order at all.
I consider that an order for parental responsibility at this stage is unnecessary and not in X’s best interests.[43] There are no pressing issues for X that need to be addressed which require one parent over the other to have such an order. I am cautious about making such an unnecessary order when one party may see that it provides some tactical advantage over the other.
[43] Family Law Act 1975 (Cth) s 61DA(4).
I do not propose to order a Recovery Order at this stage. I consider that Ms Rolphe should be given an opportunity to comply with the orders. No submission was made that she will not do so. In the unlikely event that Ms Rolphe elects to remain living in Queensland, X will live with Ms White. Nor do I think it appropriate in the current circumstances to make an order directing where X will live with Ms Rolphe other than to provide a broad parameter for that to occur.
I do not consider that the evidence warrants a psychiatric report of Ms White or an injunction in relation to Ms White’s new partner ‘Ms N’.
Neither party spoke against the appointment of an Independent Children’s Lawyer for X given the complexity and importance of the issues to the parties.
I will adjourn the matter to await the appointment of the Independent Children’s Lawyer, for Ms Rolphe to return to X to South Australia and to receive submissions as to the appropriate pathway forward. Consideration will also need to be given to arrangements for Christmas Day.
For all of the above reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 27 October 2023
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