Whiting and Dawson

[2013] FCCA 1247

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITING & DAWSON [2013] FCCA 1247

Catchwords:
FAMILY LAW – Child aged 5 – interim proceedings relating to care of child – unilateral relocation of child from South Australia to Western Australia by mother – mother claims she was compelled to move to escape family violence – proceedings delayed whilst father located mother – child has been in Western Australia for a period of nine months – father denies violent behaviour – father alleges mother poor and neglectful parent – nature of interim hearing – meaningful relationship – best interests.

Legislation:  
Family Law Act 1975, ss.4AB; 60CA; 60CC; 61DA

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
AMS & AIF (1999) FLC 92,852
Taylor & Baker (2007) FLC 93,445
Morgan & Miles [2007] FamCA 1230

Applicant: MR WHITING

Respondent: MS DAWSON

File Number: ADC 1060 of 2013

Judgment of: Judge Brown

Hearing date: 23 August 2013

Date of Last Submission: 23 August 2013

Delivered at: Adelaide

Delivered on: 2 September 2013

REPRESENTATION

Counsel for the Applicant: Ms Dixon

Solicitors for the Applicant: A K Reeves & Associates

Counsel for the Respondent: Ms Poetsch

Solicitors for the Respondent: Adelaide Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER

1. The child of the relationship X born (omitted) 2008 (hereinafter referred to as “the child”) live with the mother in Western Australia.  

2. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born (omitted) 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr R of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

3. 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.

4. Pursuant to section 69ZW of the Family Law Act, Families SA are ordered to provide to the court on or before 5 November 2013 the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

5. Pursuant to section 69ZW of the Family Law Act, South Australian Police are ordered to provide to the court on or before 5 November 2013 the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

6. The child have telephone communication with the father at times to be agreed between the parties and failing agreement to be at 5:00pm Western Australian time on each Sunday.

7. The father spend time with the child, in the event the mother comes to South Australia, at such times and on such conditions as the parties agree from time to time.

8. The proceedings be adjourned for further hearing to 18 November 2013 at 2:15pm.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1060 of 2013

MR WHITING

Applicant

And

MS DAWSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Whiting and Ms Dawson are the parents of X born (omitted) 2008.  At present, X is living with her mother, in (omitted), Western Australia. 

2. Mr Whiting lives in (omitted), in South Australia.  He was not consulted about X moving to Western Australia.  He wants Ms Dawson and X to move back to Adelaide, so he can see X regularly. 

3. In the alternative, if Ms Dawson prefers to live in Western Australia, Mr Whiting wants X to live permanently with him, in South Australia. 

4. Ms Dawson wants to keep living in Western Australia, where she has a job and a partner, Mr K.  She alleges that she had to leave South Australia because Mr Whiting was stalking her, forcing her to move home every few weeks.  It is her position that she has always been X’s main carer and it would not be in X’s best interests to live with her father.

5. It is unclear to me precisely when X and her mother moved to Western Australia.  Ms Dawson says she and Mr K decided to move there to get away from the unwanted attention of Mr Whiting and because Mr K has relatives in the state. 

6. It is clearly the case that X started school in Western Australia, from the start of term 1, in 2013.  It is also clear that she did not see her father between October 2012 and late July of 2013. 

7. Mr Whiting started these proceedings on 28 March 2013.  He was not able to serve his application on Ms Dawson because he did not know where she was living.  In late April, he sought a court order to compel Centrelink to provide Ms Dawson’s address, to the court, for service purposes.

8. It was only in July of 2013 that Ms Dawson first appeared in court.  She had travelled from Western Australia to South Australia for the case.  This was the background to the court making orders for Mr Whiting to spend time with X, in Adelaide, whilst Ms Dawson was visiting.  He saw her for four consecutive nights between 29 July and 2 August 2013.  Ms Dawson agreed to this arrangement.

9. It is Ms Dawson’s case that she and X are well settled in Western Australia and she had a very good reason for leaving Adelaide, which was to escape Mr Whiting.  She asserts that he is mentally unstable and has been regularly violent and abusive towards her in the past. 

10. The mother concedes that she has had a troubled background herself, involving significant drug use and criminal activity.  She has a child, from an earlier relationship, who was placed in foster care because of issues to do with Ms Dawson’s parenting of him. 

11. It is Ms Dawson’s case that her relationship with Mr K is a happy and stable one.  In addition, she believes that, in Western Australia, she will be able to put her difficult past behind her.  Part of these difficulties include her relationship with Mr Whiting, whom she would categorise as being coercive and controlling of her.

12. The parties met in April 2007.  At the time, Ms Dawson was nineteen years of age and Mr Whiting was twenty-nine.  It is Mr Whiting’s case that he and Ms Dawson were reasonably happy until September of 2011 and he has always doted on X. 

13. He is upset at the prospect of X remaining in Western Australia, as it will make it very difficult for him to see her regularly.  He fears that X will be deprived of having a meaningful level of relationship with him and other members of her paternal family. 

14. In these circumstances, as he was not consulted about X moving to Western Australia, he wishes the child to return to the Adelaide area, either in company with or, if necessary, without her mother.  If X does not return to Adelaide, he fears that she will not have a proper father/daughter relationship with him.

15. Mr Whiting has his own criticisms of Ms Dawson.  He does not accept that she has ceased her illicit drug use.  He also asserts that she has issues with excessive alcohol consumption.  In these circumstances, he would categorise Ms Dawson as a poor and neglectful parent of X. 

16. At present, Mr Whiting is living with his parents in their comfortable three bedroom house.  It is his case that X has often stayed there in the past and loves and knows her paternal grandparents well.  It is his position that his parents’ home represents a good environment for X. 

17. In his originating affidavit, filed on 28 March 2013, Mr Whiting anticipates that Ms Dawson will accuse him of having been violent towards her.  He denies that he has ever been violent towards her.  To the contrary, it is his case that she has assaulted him, in the past, causing him to sustain black eyes.  It is his position that he has no convictions for violence. 

18. Mr Whiting is a (occupation omitted).  Ms Dawson is a (occupation omitted).  Neither appears to be in a strong financial position.  X is five years and four months old.  Given her age, the possibility of maintaining a warm and comfortable relationship with her dad must come under threat because of the distance between Perth and Adelaide and the expense of travelling between the two locations.

19. Accordingly, this case raises issues to do with what lawyers call “relocation”.  Relocation arise when one parent, for legitimate and understandable reasons, wishes to live with a child, far away from the other parent concerned. 

20. On the one hand, Australia is a free country, whose citizens are entitled to live how and where they choose.  On the other hand, pursuant to the provisions of the Family Law Act 1975, children have an entitlement to have a meaningful level of relationship with both their parents. 

21. In relocation cases, these competing considerations collide.  In such cases, although the court cannot ignore the reasonable expectations of the parents concerned, it must remain focussed on the best interests of the child affected by the move. 

22. Issues relating to parental interaction are particularly sensitive in the case of young children, who are developmentally immature and so have difficulty sustaining significant and intimate relationships over distance. 

23. For these reasons, the court is usually loath to deal with relocation issues on a provisional basis, where the evidence available remains un-tested and often incomplete.  That is the situation here.  Both parties’ cases are far from complete and their affidavits apparently quickly prepared.

24. Because of the difficulty inherently arising in relocation cases, they invariably require a close and intricate analysis of the pros and cons of either allowing a move or otherwise, from the perspective of the parent wishing to move; the parent proposed to be left behind; and particularly the child herself.

25. In addition, in relocation cases, it is often useful to engage the family concerned in an objective and expert assessment to assist both of them and the court in determining what outcome will best serve the interests of the child concerned. 

26. As is invariably the case, in matters involving the relocation of a child interstate, without the permission of a parent, this case comes into against a background of extreme urgency.  From Mr Whiting’s perspective, time is of the essence because X is young and has been away from South Australia for some months. 

27. As a consequence of this urgency, there has been no time for the court to order an independent family report to be prepared.  In addition, the court has not been able to set aside time to allow a lengthy hearing, involving cross examination of both Mr Whiting and Ms Dawson, to ascertain the truth or otherwise of their serious allegations against the other. 

28. Obviously, the parties’ current circumstances have released powerful emotions for each of them.  Regrettably, against his difficult background, the court must make a decision, notwithstanding the limited nature of the evidence available to it. 

29. In those circumstances, the court must be careful not to condone parental self-self.  That is, one parent taking it into his or her mind to take a significant or major parental step, regarding a child, independently of the other parent concerned.  Ideally parents should share in the making of major long term decisions about their children.

30. Accordingly, the court must be particularly careful about the unilateral relocation of a child far away from the other parent concerned.  If the court is to be called upon, at the final hearing stage, to adjudicate the issue of relocation, it is usually better that this be done on a level playing field, not one skewed to the advantage of an individual parent, who has moved in a process which has not been properly discussed with and approved by the other parent concerned.

31. For those reasons, the general rule is that the court should not subsequently ratify a relocation of a child, at an interim stage, unless there are circumstances of such particular emergency, that the unilateral move of the child can be justified as being in the child’s best interests.

32. This is the nub of the present case.  Ms Dawson asserts that she faced such an emergency, in the face of Mr Whiting’s persistent stalking of her, that she had no viable alternative but to relocate both herself and X interstate.  She says she needed to move away to protect herself and X.

33. In addition, she asserts that X is now well settled in Western Australia and it would be contrary to her best interests to uproot her from there and return her compulsorily to Adelaide, particularly given what she alleges is Mr Whiting’s violent and controlling personality.

34. As previously indicated, Mr Whiting denies such conduct.  It is his position that Ms Dawson has demonstrated that she has no proper understanding of the responsibilities of being a parent because she has moved X so far away from him, without any regard as to how X can maintain an appropriate level of relationship with her father and his family.

35. This is where the difficulty for the court arises.  The allegations of both parties are serious and, if true, must have serious implications for X’s well being, both in the short and long term.  However, in the context of this limited interim hearing, the court is unable to resolve these issues definitively. 

36. Before turning to the legal principles applicable, in the case, I will summarise the respective positions of the parties in more detail.

The mother’s case

1. The mother has not called any corroborating evidence to support her claims of being the victim of family violence instigated by Mr Whiting.  She has deposed that on six occasions, she reported incidents of violence to the police. She has provided incident numbers in respect of each such report.  However, she has not as yet had time to subpoena these official records and accordingly I do not know what the records reveal. 

2. In addition, Ms Dawson has provided a letter from a domestic violence service, in Adelaide, indicating that she and X were placed in secure motel accommodation, due to alleged threats to their safety, within their family home, which emanated from Mr Whiting.  The letter indicates that Ms Dawson was a client of the domestic violence service between 30 August 2011 and 3 March 2012. 

3. Ms Dawson asserts that her brother and step-father helped her to move away from Mr Whiting, on a number of occasions, due to his violent and aggressive behaviour.  However, at this stage, she has not provided any affidavit evidence from either her brother or step-father.

4. Ms Dawson’s case is that the relationship between the parties broke down in early 2011.  However, she concedes that they attempted a brief reconciliation in September of 2012.  Ms Dawson asserts that her relationship with Mr Whiting was “marred by extreme jealousy, and controlling and abusive behaviour on the part of the father.”

5. She further asserts that Mr Whiting would not allow her to have contact with her friends and family.  She also asserts that Mr Whiting would shout at her and assaulted her on a number of occasions, during the parties’ relationship, particularly in 2010.

6. Specifically, she asserts that Mr Whiting has caused bruising to her arms and threw a sauce bottle against a wall, causing it to break near her.  She asserts that this violence occurred in the presence of X and was exacerbated by the father’s drug use. 

7. It is the mother’s case that it was very difficult for her to leave the relationship with Mr Whiting and his violent behaviour continued after the parties separation and until she left for Western Australia.  She alleges that Mr Whiting has attacked her with a knife, punched her in the neck and attempted to strangle her.

8. It is Ms Dawson’s case that, in the period following separation, she attempted to facilitate X’s relationship with her father, but found it very difficult to do so because of his violent and unpredictable behaviour. 

9. She asserts that Mr Whiting made several threats of suicide in front of her and X and, on one occasion, in the presence of police.  In respect of this latter incident, Ms Dawson alleges that the police detained Mr Whiting pursuant to the provisions of the Mental Health Act.

10. Once again, I have not been provided with any documentary evidence in support of this assertion.  Ms Dawson’s perspective, she has not, as yet, had time to obtain this material. 

11. It is her application that the court should, of its own volition, obtain the documents relating to this admission and the police involvement in it, pursuant to the provisions of section 69ZW of the Family Law Act.

12. Ms Dawson deposes that following the father involuntary detention, she feared for her safety and changed addresses.  In this context, she asserts that the father located her new premises; kicked in the door; and thereafter forcibly gained entrance.  Thereafter, she says that she and X were detained against their will and the father raped her. 

The father’s case

1. Mr Whiting’s evidence is that he has never been violent towards Ms Dawson, rather he asserts that the mother has fabricated allegations of violence against him, which she has circulated amongst her family and friends to discredit him and gain advantage for herself. 

2. Mr Whiting also deposes that he regularly spent time with X, during much of 2012, including overnight, on weekends, from Friday to Sunday.  He asserts that this arrangement suited Ms Dawson because she was using her weekends to take methamphetamines and consume alcohol to excess.

3. In the context of the mother’s socialising and excessive drinking, Mr Whiting alleges that Ms Dawson has neglected X, who has complained to him, on one occasion, that she has not had enough to eat. 

4. He denies that he has ever been charged with any offence of violence involving Ms Dawson and certainly has never been convicted of any type of assault, involving any other person. 

5. Mr Whiting’s affidavit was prepared in March of 2013, when he was unaware where Ms Dawson was living.  It is a brief document.  He has not had an opportunity to respond to the detailed allegations against him. 

6. His denials of violence are in general terms.  But, as previously indicated, he anticipated that it would be alleged he had been violent towards Ms Dawson. 

7. More recently, Mr Whiting has deposed that X has been able to speak to him on the telephone.  In these telephone calls, he asserts that X has told him that she misses him and her paternal grandparents. 

The legal principles applicable

1. Interim hearings do not determine long term arrangements for children.  That is the function of final hearings.  However, the same principles apply at both the interim and final hearing stage. 

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

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC. 

4. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.  There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

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

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

1. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

2. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The recent changes to the Family Law Act, relating to family violence, are significant ones.  The key amendments are designed to “prioritise the safety of children in parenting matters”.[1] 

   [1]  See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

4. The recent amendments have also inserted new definitions into the Act. In particular, family violence is defined by section 4AB(1) of the Family Law Act.  It means:

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

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

   ·An assault;

   ·A sexual assault;

   ·Stalking;

   ·Repeated derogatory taunts;

   ·Preventing a family member from making or keeping connections with his or her family, friends or culture;

   ·Depriving a person of his or her liberty.

6. 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 coerces or controls that person. 

7. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.  Again, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence. 

8. These examples include the overhearing, by the child, of threats or personal injury made against a member of the child’s family by another family member; seeing or hearing an assault of a family member by another member of the child’s family; the child comforting or providing assistance to a family member who has been assaulted; and observing the physical sequellae of assault or damage to property, such as clearing up after such incidents or being present when police or ambulance officers attend an incident involving family violence. 

9. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations. 

10. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

11. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[2] 

    [2]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

12. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[3]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[4] 

    [3]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [4]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

13. Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

14. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

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

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

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

Discussion

a)     Primary considerations

1. Mr Whiting’s case is centred on considerations relating to the benefits X is likely to derive from having a meaningful level of relationship with him and other members of her paternal family. 

2. I agree that, if X remains living in Western Australia, given her tender years, it will be difficult for her to maintain any form of relationship with her father and her paternal family, let alone a meaningful level of relationship. 

3. I also accept that the evidence available to me establishes that Ms Dawson did not discuss with Mr Whiting the prospect of X moving to Western Australia.  The move was a unilateral one and potentially significant for X, in terms of her relationship with her father and paternal grandparents. 

4. From Mr Whiting’s perspective, he is concerned that, if the court retrospectively ratifies Ms Dawson’s unilateral relocation of X to Western Australia, it may render any later and more exhaustive investigation of the evidence at final hearing otiose.  In addition, it may mean that the legislative intent, arising from the presumption of equal shared responsibility, has no application to the case. 

5. If the presumption applies, the court is directed to consider any child concerned spending either equal time or substantial and significant periods of time with both his or her parents.  The application of the presumption creates significant difficulties for the court, in cases in which issues of relocation are raised. 

6. The High Court, in AMS,[5] has said that relocation cases require particularly close and delicate analysis of the various issues involved.  As such, as I have said, it is generally preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocation have potentially serious ramifications for children, especially in terms of their parental relationship.

   [5]  AMS & AIF  (1999) FLC 92,852

7. In Taylor & Barker,[6] the Full Court of the Family Court spoke of the risk of the court potentially devaluing the legislative imperative placed on it to consider actively a child spending equal time or substantial and significant time with both parents in all cases, including those which contain a relocation proposal. 

   [6]  Taylor & Baker (2007) FLC 93,445

8. The unilateral nature of Ms Dawson’s relocation of X to Western Australia, which has raised the potential of the child not having a meaningful level of relationship with her father in future, is a factor which militate in favour of the court directing X’s return to South Australia, pending final hearing. 

9. Ms Dawson’s case is centred on protective concerns relating to X, particularly the need to protect her from the psychological and physical consequences of being exposed to family violence in future.  As previously indicated, the applicable legislation directs the court to give priority to such protective concerns. 

10. If Ms Dawson’s evidence is correct, it is clear that both X and her mother have been exposed to family violence of a very serious nature.  This violence includes both sexual and physical assault; deprivation of liberty; stalking; and social isolation. 

11. It is Ms Dawson’s evidence that this violence coerced her, to such a degree, that she considered she had no realistic alternative but to flee, with X, to Western Australia.  It is her case that she had attempted to live safely and independently of Mr Whiting, in Adelaide, but her attempts were foiled by his obsessive stalking of her.

12. Mr Whiting asserts that the mother’s evidence is all made up.  At this stage, given the gravity of the mother’s concerns, I do not believe that I am in a position to easily dismiss the mother’s claims, which are extremely serious.  On Ms Dawson’s case, the police and mental health authorities were involved and she received assistance from a domestic violence service.

13. At this stage, I consider that there are reasonable grounds for me to believe that Ms Dawson and X have been exposed to family violence instigated by Mr Whiting and therefore the presumption of equal shared parental responsibility should not be applied in the case and certainly, at this interim stage, it would not be appropriate for it to be applied.

14. In all these circumstances, I have come to the conclusion that, pending further evidence being available, the court’s primary responsibility must be to protect X from being exposed to family violence in future.  If X remains living in Western Australia, with her mother, this objective is likely to be achieved, but it will come at a significant cost to the child. 

b)     The additional considerations

1. X’s most significant relationship appears to be with her mother.  However, Ms Dawson concedes that X knows her father and paternal grandparents well.  In this context, she was willing to allow X to spend four days with her father and paternal family recently, when she returned to South Australia from Western Australia.  In my view, this is significant [section 60CC(3)(b)]. 

2. It is likely to be extremely detrimental for X to move into her father’s predominant care, given the interruption of her relationship with him.  Ms Dawson has given no consideration as to where she would live, in the event of her forced returned to South Australia.  Such a return is likely to be very unsettling to X, who appears to have been in Western Australia for a period approaching at least nine months [section 60CC(3)(d)]. 

3. I am well aware of the logistical difficulties relating to X spending time with her father, if she remains in Western Australia and he remains in South Australia.  These difficulties are likely to substantially affect X’s right to maintain direct contact with her father, on a regular basis [section 60CC(3)(e)]. 

4. X is just over five years of age.  Her level of maturity is highly relevant to this case.  It will be difficult for her to maintain a sense of connection to her father and paternal family over distance.  Such relationships depend on regular refreshment through periods of face to face interaction.  Telephone communication is no substitute for such direct physical interaction [section 60CC(3)(g)]. 

5. Both parties make stringent criticisms of the parental capacity of the other and the attitude which each has displayed to the responsibilities of being a parent.  I am not in a position to resolve these issues in the context of this limited interim hearing, but potentially these matters are significant in the ultimate outcome of the case [section 60CC(3)(f) & (i)].

6. I have already alluded to the issue of family violence [section 60CC(3)(j) & (k)].  Family violence represents a multi-faceted danger to children.  It can cause them fear and apprehension, particularly if they witness a parent being hurt or intimidated. 

7. In addition, a parent who would inflict such behaviour on another person is likely to represent a poor role model for the child concerned.  It is for these reasons that the legislature has directed the court to give significant weight to considerations of family violence in respect of arrangements for children, both at the interim and final stage. 

8. It is significant that I have not been provided with details of any family violence order relating to the parties.  It is, I think, implicit in the father’s case that, for Ms Dawson to relocate to Western Australia, with X, represented a disproportionate response to the various issues arising between him and the mother, given that it was open to her to seek protection from the police and the courts. 

9. In Morgan & Miles,[7] which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage.  She said as follows:

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

   [7]  Morgan & Miles [2007] FamCA 1230

10. It is implicit in the mother’s case that she was confronted with such a situation of emergency, when she moved, with X, to Western Australia.  Underpinning her case, is her assertion that Mr Whiting continued to stalk her, notwithstanding her attempts to shake free of him. 

11. Although I am not in a position to ascertain the truth of Ms Dawson’s allegations of family violence, if true, the behaviour of Mr Whiting was persistent, threatening and serious, involving the police and mental health authorities.  If Mr Whiting was obsessively stalking her, Ms Dawson did indeed face an emergency of such gravity to justify her taking extreme measures.

12. On Ms Dawson’s case, X’s care prior to September 2012 was unsettled and, at times, chaotic.  She seems to be settled and comfortable in Western Australia at present.  Whilst so much uncertainty surrounds the evidence of both parties, in my view, it would not be in X’s best interests to unsettle her once again.

Conclusions

1. In my view, at this stage, the court is not in a position to dismiss the issues of family violence raised by Ms Dawson.  If true, Mr Whiting’s alleged behaviour represents a threat, of the upmost gravity, to X’s emotional and physical wellbeing.  At this stage, the court’s primary obligation is to act protectively in respect of X. 

2. In these circumstances, it behoves the court to put in place steps to enable the investigation of the mother’s claims more thoroughly.  These investigations will include the appointment of an independent children’s lawyer for X. 

3. One of the roles of the independent children’s lawyer will be to gather evidence, from any independent sources, regarding the mother’s claims.  This will take some time to occur.  Whilst these investigations are taking place, it will be, in my view, highly problematic for X and Ms Dawson to return to live in the Adelaide area. 

4. Ms Dawson has employment and accommodation in Western Australia.  Her partner is also working there.  In addition, it cannot be said that Ms Dawson is a recent arrival in Western Australia.  X has been at school in (omitted) since January of this year. 

5. In all these circumstances, given X is settled and safe in Western Australia, in my view, it would not be in her best interests to compel her return to South Australia, whilst further evidence is gathered in the case.  Accordingly, I have determined that X should continue to live, in Western Australia, with the mother, until further order.

6. The chief detriment of this outcome is easily stated.  Whilst these investigations are carried out, X’s ability to have a meaningful level of relationship, with her father, will be significantly impeded.  At this point, Ms Dawson has no clearly delineated proposals for X to spend time with her father.  Similarly, Mr Whiting has not considered closely his options, if the case does not turn out in the way in which he had hoped, at this interim stage. 

7. I have been provided with no evidence as to how often Ms Dawson proposes returning to South Australia and what would be the cost of her travelling to and from Adelaide, with X.  She has made no concrete proposals for the father to spend time with X at this early interim time.

8. In addition, I know nothing of the individual financial circumstances of the parties, although I anticipate that neither is likely to be in a strong financial position.  At this juncture, little thought has been given to the logistical issues arising, at the interim stage, prior to the final hearing. 

9. Pending the appointment of the independent children’s lawyer, and the inquiries he or she will make, it is premature to fix the case for final hearing.  I will also await the submissions of the independent children’s lawyer as to who should undertake the family report likely to be required in the case.  The investigations necessary to advance the case will take a reasonable period of time.  In these circumstances, I propose to adjourn the case for approximately ten weeks.

10. In my view, in the absence of well delineated proposals for X to spend time with the father and given the logistical difficulties arising, it is not likely to be in X’s best interests to make interim orders for X to spend with Mr Whiting, which will have an uncertain application.  I will make orders for weekly telephone communication between father and child.

11. In the adjourned period, each party, including the independent children’s lawyer, can make proposals for X to spend time with Mr Whiting, in the light of any additional evidence which comes forward.

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

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:  2 September 2013