Williams and Williams and Anor

[2015] FCCA 1441

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIAMS & WILLIAMS & ANOR [2015] FCCA 1441

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged 3 years – nature of interim hearing – conflicted evidence – relocation – proceedings between a grandparent and parent – steps necessary to investigate matters further – best interests.

Legislation:  

Family Law Act 1975, s.60CC

U & U (2002) FLC 93-112
Goode & Goode (2006) FLC 92-286
Cilento & Cilento (1980) FLC 90-847

Applicant: MS WILLIAMS

First Respondent: MR WILLIAMS

Second Respondent: MS PULLEN

File Number: ADC 167 of 2015

Judgment of: Judge Brown

Hearing date: 13 April 2015

Date of Last Submission: 13 April 2015

Delivered at: Adelaide

Delivered on: 13 April 2015

REPRESENTATION

Counsel for the Applicant: Mr Boehm

Solicitors for the Applicant: Legal Services Commission Noarlunga

Counsel for the Respondent: Ms Galvin

Solicitors for the Respondent: Journey Family Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child X born (omitted) 2011 live with the paternal grandmother in South Australia.

2. The child spend time with the father as follows:

   (a)In the event the father lives in the metropolitan area of Adelaide;

   (i)On each Wednesday from 12:00pm midday until 5:00pm the following Thursday; and

   (ii)On each Saturday from 12:00pm midday until 5:00pm the following Sunday.

   (b)In the event the father elects not to live in the metropolitan area of Adelaide as follows:

   (c)On the father giving seven (7) days’ notice of his intention to visit X and on the proviso he remains for a week at a time he spend time with the child on a weekly basis as follows:

   (i)On the Tuesday from 9:00am to 5:00pm;

   (ii)On Thursday from 9:00am to 5:00pm;

   (iii)On Friday from 9:00am to 5:00pm ; and

   (iv)On Saturday from 9am to 5pm

There being no more than four such visits during the period of the adjournment.

1. The father have telephone communication with the child at times to be agreed between the parties and failing agreement to be each second evening whilst the father is in Brisbane at 5.30pm (Australian Central time).

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) 2011 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell 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 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by no later than 29 June 2015.

5. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members NOTING the father’s interviews are to coincide with his visits to Adelaide;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

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

6. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

7. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

2. Further consideration of the matter is adjourned to 21 July 2015 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 167 of 2015

MS WILLIAMS

Applicant

And

MR WILLIAMS

First Respondent

MS PULLEN

Second Respondent

REASONS FOR JUDGMENT

1. It is 5:05pm on 14 April.  It is now time for me to deliver judgment in a matter in which Ms Williams is the applicant and Mr Williams is the respondent. 

2. There is a third party to the proceedings.  She is Ms Pullen.  However it is common ground between Ms Williams and Mr Williams that Ms Pullen has played no role in these proceedings whatsoever.  Why that is so will become apparent in a moment. 

3. These reasons for judgment are being delivered orally following a truncated hearing, which commenced about 2:15pm this afternoon.  So they have occupied the entire afternoon.

4. The case first came before me this morning in what is commonly called the duty list.  That is the day on which proceedings come into court for the first time.  Hopefully each case is able to receive the attention which it needs, according to the urgency and complexity of the factual situation arising. 

5. It is, I think, clearly the case that this is a very complicated matter.  As a corollary of its complexity, I elected to hear some evidence from each of the parties concerned.  That is an unusual course for the court to adopt, on an interim basis particularly on a case’s first return.

6. One aspect of the urgency of the case is that it concerns a child of tender years.  He is X, who was born on (omitted) 2011.  Accordingly, X is about three and a half years of age. 

7. The applicant in the proceedings, Ms Williams, is X’s paternal grandmother.  The first respondent, Mr Williams, is X’s father.  Accordingly, in the natural scheme of things, one would anticipate that grandmother and father would share affections of blood and loyalty for all sorts of obvious reasons.  That is not the case in this particular matter. 

8. The second respondent, Ms Pullen, is X’s mother.  She is in (country omitted).  On both parties’ cases, she has had very little to do with X, since he was about four months of age, due to various personal difficulties, which she has.

9. The grandmother – it is convenient to refer to her thus – commenced these proceedings on 20 January 2015.  Her application was prepared by herself.  In her application she seeks an order that X live with her until he is 18 years of age.  She also wants to be responsible for making all long-term care, welfare and development decisions concerning X. 

10. She wants, in addition, to have sole responsibility for X’s day-to-day care.  She proposes that the father have limited access to the child, when he is in Australia, as long as it does not interfere with school, medical or other pre‑arranged appointments for X.  She has further proposals for Ms Pullen to have supervised visits with X.

11. It is the grandmother’s case, and these are her words, that she has been X’s primary carer, except for what she describes as a brief respite, which occurred in 2013, for his entire life to date.  It is her position X came into her care because Ms Pullen was not taking proper care of him and because of this there had been an investigation by the Child Safety Department in (country omitted). 

12. She does, however, concede that, from the date of X’s birth until 5 July 2012 she, X and Mr Williams lived with her mother and her stepfather at a property in (omitted), in south east Queensland, and then later until 6 January 2015, she shared a lease of a unit with her son, Mr Williams in suburban Brisbane.  X was there as well.  She also concedes that the father loves X a great deal.

13. I think there can be no doubt at all about that.  One of the important aspects of this case is that both the grandmother and the father love X very much indeed, but for reasons which I will go into in more detail in a moment, the family has got itself into a terrible terrible muddle.

14. The impression that the grandmother gave in her self-prepared affidavit, which is short, being three pages in length, is that to all intents and purposes, she has been the person who has done the nuts and bolts caring of this little boy from the time he was born and that currently Mr Williams is not committed to living in Australia. 

15. It is the grandmother’s case that, for all sorts of reasons, Ms Pullen was not in a position to care for X and although she (the grandmother) and Mr Williams have shared accommodation from time to time, it was she who was the driving force in making sure that X was taken care of.

16. In this context, she deposes that Mr Williams had what she describes as odd working hours.  She also says that he was not really interested in parenting X on a full-time basis.  She says that things became more problematic, so far as the father’s involvement with X’s care, from September of 2014 onwards.  At that stage, she says that he began to become what she describes as an absent father, in that he was frequently visiting the (country omitted).

17. Now, Ms Williams’ application was filed in this court on 20 January, and the court officials concerned determined that it should be heard today, and if I said 14 April earlier, I was mistaken, today is 13 April.  But it was to be served on Mr Williams no later than 31 January 2015.  It was not served on Mr Williams prior to that date.  In fact, it seems to be the case that it has only fairly recently been served.

18. He has instructed solicitors in Brisbane.  They prepared a response and an affidavit, which was handed up to me today, although, I accept that it was posted down earlier and asked to be filed as quickly as possible.  That, apparently, did not occur. 

19. Anyway today, on an interim basis, what Mr Williams seeks is what is commonly called a recovery order, which is an order that directs police officers to, in effect, go and find a child and remove it from the person who is caring for the child concerned and bring it to the person named in the recovery order.  It is a serious thing for a police officer, in effect, to arrest a child.

20. On both a final and interim basis, the father wishes to have sole parental responsibility for X and for X to live with him.  He proposes that the child spend time with the paternal grandmother at any times as may be agreed between the father and the paternal grandmother.  He has some similar proposal in respect of the mother.  It is his view that there should be a family report prepared. 

21. In a moment, I will make an order that such a report be prepared.  I agree that it is urgently needed because of the complexity of the case.

22. It is the father’s position that, although he shared accommodation with his mother and X from time to time, it is he who has made all the proper decisions about X and he (the father) has taken care of X.  This is the central factual issue in dispute in the case.

23. He concedes that his work from time to time has been demanding but nonetheless essential for both X and the grandmother’s support.  In his words, he is the person who has paid for everything.  He is critical of his mother for not pulling her weight financially.

24. Mr Williams has had employment as a (occupation omitted) in the Brisbane area.  As I say, for most of X’s life, he has lived in Queensland.  That arrangement came to an end when in early January, on either 5 or 6 January of this year, Ms Williams and X moved to the southern suburbs of Adelaide.  She said that this move occurred with Mr Williams’ acquiescence.  At the time, Mr Williams was in the (country omitted). 

25. It is the father’s case that there are many issues about the grandmother’s life and how she has conducted her affairs in the past about which the court should be concerned because of their potential impact on X.  It is his position that the grandmother has an unhealthy fixation with cats.  That she takes cats into her home of which she does not take proper care, which renders her accommodation, essentially, unsanitary. 

26. In addition, it is his case that his mother is financially incompetent and, although she is able to get employment, she gets it by obtaining references which are untrue.  It is Mr Williams’s position that the grandmother is dishonest and manipulative and therefore not a good influence on X’s life.

27. It is now common ground between the parties that when the grandmother says that she has taken care of X for all his life, except for a brief respite, that was a period when she was in prison serving a custodial sentence in respect of a dishonesty conviction. 

28. It is the father’s case that he was the person who earned all the money for the family, and the grandmother was content to let that happen.  It is also his position that she is emotionally unstable and manipulative.  It is his case that she has attempted to commit suicide in the past and is an emotionally unreliable person.

29. The mother has her own criticisms of the father.  I have outlined some of them.  It is her case that her son, when the parties lived together, spent quite the majority of his time online, forming brief liaisons with other people. 

30. She paints a picture of an absent father.  But the difficulty in the case is, as I have outlined it, that from early January, X has been in South Australia.  It is the father’s position that X’s home is in Queensland and it is with him.

31. The grandmother’s affidavit material was self-penned.  It was inadequate.  On that basis, given the obvious urgency of the situation, I elected to hear from each of the parties and see them in the witness box. 

32. The party’s respective lawyers were able to lead additional evidence from each of them, and I was able to observe each of them under cross‑examination.  I cannot claim to have a full understanding of the difficult dynamics of this particular family, but some issues, I think, have fallen into greater clarity.  Other issues remain unclear to me.

33. The major issues of dispute concern who of the parties has provided more of the care of X up to this point, and as a corollary of that, where does this little boy derive his sense of security and emotional sustenance. 

34. The second issue surrounds how he came to be in this state, and what are the ramifications of that in terms of his entitlement to have a proper level of relationship with each of his parents and others significant to his care.

35. It is I think clear, and Mr Williams does not dispute it, that he became involved with a person by the name of Ms J, at some time in the middle part of last year.  Whether it was July or August I am not sure, but sometime around there.  

36. Ms J lives in (omitted) in the (country omitted).  She and Mr Williams met one another online, whilst they were taking part in a computer game.  That is not an uncommon scenario.  They began to chat with one another and they formed some form of relationship.  From Mr Williams’ point of view, the two plan to marry and, obviously, that is a significant level of relationship.

37. Anyway, it is common ground that Mr Williams first went to America for three weeks in August/September of 2014, returned again between 14 October and 14 November 2014, and again was in the (country omitted) between 27 December and 12 February.  It is also common ground between the parties that Ms J visited South Australia in the latter part of February 2015, and that Mr Williams visited (country omitted) between 25 February and 29 March 2015.

38. It is agreed between the parties and implicit from what occurred that when Mr Williams went to the (country omitted), he was content to leave X in the care of his grandmother, and that this was the position in October and more recently in December/February.

39. Ms Williams, whilst she was in prison, discovered a lump in her breast that was tumorous.  The cancer concerned was fast growing, and as a result, she received an early discharge from her sentence. 

40. I understand she has received chemotherapy, but I do not know very much about her treatment other than it concluded, in terms of chemotherapy, around early January of this year.  More recently, on 24 February of this year, she had a partial mastectomy, which was performed in Adelaide or certainly in South Australia.  She is now in remission from her illness, which, of course, is very good news.

41. It is her case that her mother, with whom she shared a close relationship, died sometime last year, which, of course, was a great tragedy and sadness for her.  As a consequence of that, she wanted to move closer to her family. 

42. She has previously been married to a gentleman by the name of Mr G.  He is the father of Mr Williams and two other of Ms Williams’ children, Mr S and Mr P.  Mr S and Mr P live in Adelaide.  They have formed relationships based in South Australia, and Ms Williams is close to them. 

43. She is also close to her former husband, Mr Williams, who has purchased accommodation which she can use in one of the southern suburbs of Adelaide Mr Williams apparently received a payout from his work to fund the purchase.

44. So that was the rationale for Ms Williams wanting to move to South Australia.  She says she discussed it with Mr Williams, and he was open to it.  At this stage, there is no dispute that Mr Williams paid to take his furniture and his mother’s furniture from Brisbane to Adelaide.  In his evidence today, he says that he, whilst not committing to being in Adelaide indefinitely, committed to spending six months in South Australia.

45. So it is Ms Williams’ case that she came to South Australia with Mr Williams’ express imprimatur or permission, against a background where he paid her relocation expenses.  In addition, prior to that move and, indeed, after it, he was acquiescent in her providing the majority of care to X, whilst it suited him, particularly when he travelled to the (country omitted) to spend time with Ms J.

46. Mr Williams now asserts, in effect, that his mother has manipulated the situation all along.  As such, she has overstepped what a responsible grandmother should do.  It is his case that she is intent on stepping into his proper role as X’s parent, and when that occurs, she will not support any level of relationship between X and his father.  Although he concedes that, at least at one level, he was prepared to trust his mother, with X, whilst it suited him, it is his case that he did so with some reluctance.

1. The grandmother asserts that Mr Williams and Ms J, when they were visiting in Adelaide, were irregular and unreliable in terms of their interaction with X.  She says that they came late on the first occasion and on the second occasion, returned him early.  She does concede, however, that Mr Williams did have X’s care overnight on one occasion and later there was a family dinner, and then a trip to the seaside.

2. However, after that event, something seems to have occurred which has polarised the positions of the parties to a significant degree.  Ms Galvin, counsel for Mr Williams, has asserted that Ms Williams kept the proceedings up her sleeve, so to speak, so that she could gain advantage, when it suited her. 

3. The grandmother has said that she had a telephone conversation with Ms J, who intimated to her that she was a rich and powerful person in the (country omitted) who would ensure that, at some stage or other, Mr Williams and X would be living in that country.

4. Against that background, she was fearful, which caused her to commence these proceedings very soon after she arrived in South Australia, but not to serve them, when she could have done so, when Mr Williams was visiting with Ms J.

5. It is a tangled skein indeed.  The family is obviously in some form of crisis.  But what I think is clear, and what I am prepared to accept from the evidence, which I have heard from each of the parties up to this point, is as follows.

6. X seems to have attended day care from an early age indeed.  Mr Williams says from about one year of age.  Thereafter, there are disputes about who delivered the child, who collected the child and who did what.  But the child has spent a lot of time in day care.

7. It is also the case, I think, that Mr Williams worked fairly long hours, and some of those hours were on weekends when day care was not available.  Therefore, Ms Williams, the grandmother, he concedes, did take care of X regularly. 

8. What happened during the weekend is perhaps more unclear, but the parties were all living in the same household, and it would seem improbable that Mr Williams did not interact with X to a significant degree, when he was not working.

9. Although, as I say, the grandmother says he was on his computer or socialising more often than not.  So it would seem that more likely than not that each of the parties has a significant relationship with X, but he has also spent quite a bit of time with day care. 

10. Ms Williams, I think, accepts that she has had seven cats from time to time.  She denies, I think, the gravamen of some of the assertions that she took in strays.  She also denies that her house was unsanitary.  But to a certain extent, it has to be the case that Mr Williams was prepared to overlook those problems, if they were problems, when he went to the (country omitted).

11. So the issue of who has been the major carer remains problematic.  However, since August of 2014, it would appear to be the case that it is the grandmother who has provided more of that care, with the father’s acquiescence, when he has voluntarily left X with his grandmother, so he could go to the (country omitted).

12. It is also the case that, at least to some extent, the father agreed to the child coming to South Australia, so that the Brisbane care arrangements could be translated to South Australia.  That is no longer Mr Williams’ position.  He asserts that the court ought to direct X to go back with him today.

13. He has signed a lease on a flat or apartment in Brisbane for six months.  I am told that he has paid the rent in advance.  That seems an irregular arrangement, but I suppose it is not beyond the bounds of possibility.  He wishes to study in Brisbane and redo years 11 and 12, with a view to doing an (course omitted) course.  It is his position that it is impossible for him to do what he said he would do in December of 2014, that is, give Adelaide a go for six months. 

14. In this context, the grandmother says, “Well, I am here now.  I came with the father’s consent, and I cannot now easily move back.”  Mr Williams says he has money in the bank.  He has no plans to go to the (country omitted) in the short to medium term, but Ms J will be coming here at some time in the near future. 

15. Ms Galvin has corrected me when I characterised this as an interim relocation case.  More correctly, it is a children’s case that has an aspect of relocation about it.  She reminds me that in a truncated hearing such as this, I am still required to follow the same legislatively mandated path, which is, as follows.

16. X’s best interests are the paramount or most important consideration in the case.  This principle applies at both the interim and final hearing stage.  The distinction between an interim hearing and a final hearing being that an interim hearing does not determine the long-term arrangements for the care of a child, whereas final proceedings do.

17. Accordingly, the nature of an interim hearing is different in quality to the hearing which takes place at the final hearing stage.  The interim hearing takes place in the shortened form, although in this case, I have the advantage of having heard some limited oral evidence from each of the parties. 

18. But at this stage, the most significant deficit in the evidence available to me is that I have no independent and objective expert assessment of X and his needs. 

19. I am greatly concerned about X.  His life up till this stage has not been without its instability.  His grandmother was incarcerated.  His father has been away.  He has no relationship of any moment with his mother.  Importantly it is now the case that those who have been most significantly involved in his care have fallen out in a massive way.

20. It is frequently the case that the court is called upon to make interim determinations against a background of urgency.  So it is in this case.  In addition, in such urgent cases, it is almost invariably the case that the parties have diametrically opposing views as to what arrangements will best serve the interests of the child concerned. 

21. In such cases, it is the responsibility of the court to do the best it can to unpack the conflicting evidence and identify the issues which perhaps can be agreed, and the issues which are in dispute.

22. Thereafter, I must consider the factors arising under section 60CC of the Family Law Act, bearing in mind the limited nature of the case. Section 60CC sets out that the factors which I must consider to determine the best interests of the child concerned.

23. There are two categories of considerations I must bear in mind.  Primary considerations and a longer list of matters characterised as additional considerations.

24. There are two primary considerations.  Firstly, the benefit of the child having a meaningful relationship with both his parents, and secondly the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

25. Having identified the first of those primary considerations, one consideration leaps out.  I am not dealing with a controversy or a dispute between a mother and a father.  I am dealing with a dispute between a father and a grandmother.  

26. It is the position that the structure of the Family Law Act, to a certain extent, gives primacy to the concerns of parents. However, there is no presumption that a parent’s case is in a better position to that of a grandparent.

27. What I must do is consider the overall objects and principles of the Act.  In this regard I must bear in mind that children have a right to have a relationship with those who are likely to be significant to them.  In this case, it is clearly the case, I think, that the grandmother and the father have a significant level of relationship with X. 

28. That has arisen because, I suspect, Mr Williams and Ms Pullen formed a relationship when they were young.  That relationship was not a particularly stable one, and thereafter, as I have said, X has lived in the same household with his grandmother essentially from a time shortly after his birth. 

29. But as Ms Galvin reminds me, the objects of the Act do place significant emphasis on X’s entitlement to have a relationship with his parents. 

30. Thankfully, this is not a case that is focused on physical or psychological harm, although it seems axiomatic that the present situation is not one that is well calculated to serve X’s best interests.  As I say, the situation at the moment is a complete mess.

31. In terms of the additional considerations, they occupy placitas (a) to (m) of the subsection 3 of section 60CC of the Act. Placita (m) is as follows:

    “The court is directed to take into account any other fact or circumstance that the court thinks is relevant.”

32. That is to ensure that the court delivers an individual or tailored outcome to the best interests of the child concerned.  It is trite, but true nonetheless, that every family is different, and X’s family is idiosyncratic and has its own particular individual problems.  It is my responsibility to consider those matters to come to the outcome, which I think is likely to be in X’s best interests.

33. X is too young to express a view at this stage.  In any event, I do not know what it is.  This is not a case which turns on X’s views.  I have to consider the nature of the child’s relationship with each of his parents and other persons, including a grandparent, a relative of the child. 

34. As I say, the child has a significant relationship with his father, but it seems clear also that he has a significant relationship with his paternal grandmother.  That must be the case, because X has shared the same household with his grandmother, apart from the time she was in prison.  In this regard, I am told that during this period, X did visit his grandmother while she was incarcerated. 

35. I have to consider the extent to which each of the child’s parents has taken or failed to take the opportunity to, amongst other things, spend time with the child.  I have heard the circumstances of how Mr Williams and Ms J met one another. 

36. I hope their relationship is a long and happy one, but to a certain extent, Mr Williams has prioritised his desire to pursue his relationship with Ms J above the needs of X. 

37. To a certain extent, Mr Williams cannot have it both ways, that is, that Ms Williams is a poor and abusive grandmother, who is manipulating X in order to exclude him from the child’s life.  But on the other hand, he was content to leave the child in the grandmother’s care for not insubstantial periods of time.

38. I appreciate that parents frequently leave their children with grandparents whilst they take short breaks.  That is the zeitgeist of the times.  But this is not a situation when the parents have gone off for a short break. 

39. These have been much longer periods and they have occurred against a background in which the grandmother has been living in the same household as the child.  It is not, in my view, analogous to a baby-sitting situation.

40. I also have to consider the likely effects of any changes in the child’s circumstances.  As Ms Galvin points out, the court has been directed, in cases such as Goode & Goode[1], that earlier cases such as Cilento[2] and so on and so forth have had their day. 

    [1]  See Goode & Goode (2006) FLC 92-286

    [2]  See Cilento & Cilento (1980) FLC 90-847

41. The court is not to have regard to status quo as the significant factor at interim hearing stage, particularly where a status quo has been artificially engineered.

42. But in this case, the effects of change on X are at the heart of what I must consider.  The grandmother asserts that, essentially, Mr Williams is untested looking after X on his own without her being there, and I think that must be the case. 

43. Similarly, the grandmother is untested to some degree on how she will cope without the father being there.  But her case is a little different to that of the father, who has conceded that he was working long hours.  He is now somewhat bitter, I think, that it was he who did all the financial heavy lifting.  In any event, rightly or wrongly, the child has been in Adelaide in the grandmother’s care for a significant period of time.

44. I have to consider the practical difficulty and expense of the child spending time and communicating with parents and, obviously, in a case such as this one, the practical difficulties are extreme indeed, because it is a very long way from Brisbane to Adelaide and vice versa.  This is perhaps a convenient place to discuss in shorthand terms the issues which arise under the rubric of relocation.

45. Relocation of a parent or a carer away from a person who is significant to the child relocated create all sorts of difficulties for the court.  On the one hand, individuals are free to live wherever they want in this country. 

46. On the other hand, children have an entitlement to have a proper level of relationship with those who are significant to them, including parents, and, indeed, grandparents.  Those principles come into conflict where issues of relocation arise.  They are particularly problematic at the interim hearing stage.

47. As a consequence, it is generally the rule that courts should not endorse, after they have occurred, unilateral relocations.  But that is not the case here.  This was a relocation that occurred at least with the implicit acquiescence of Mr Williams. 

48. It has, of course, significant impact on X’s capacity to spend time with his father.  I am well aware of that.  However, in a number of cases, including U & U[3], a decision of the High Court, in which Gaudron and Heydon JJ have considered that it may be perhaps sexist not to consider whether one parent, or a person who is concerned in the care of a child, cannot move closer to the relocating or relocated parent. 

    [3]  U & U 2002 FLC 93-112

49. In this case, I ask Mr Williams if he would consider, as he said he would do earlier, moving closer to Adelaide, albeit for a finite period of time.  It is his case, as I understand it, that he cannot, because he is committed to the lease. 

50. He does not have employment in South Australia and wishes to study in Brisbane.  His relationship is with a person who could travel, it would seem, just as easily from (country omitted) to Adelaide or Brisbane.  But I appreciate that it is Mr Williams’ preference to live in Brisbane, where he is happy and well supported.

51. So this is not a move that occurred against a background of chicanery or clandestine arrangements, although, as for reasons that I have given, Ms Williams perhaps was not completely upfront about her application.  But she moved because Mr Williams said he was going to come too, and I think that is a significant factor. 

52. I have to consider the parental capacities of each of the parents and their attitudes to X and their attitude to the responsibilities of being a parent, demonstrated by all the people concerned.

53. As I say, I can understand why Mr Williams would want to go to the (country omitted), but to a certain extent, he prioritised his desires and aspirations to have a relationship with Ms J above X’s needs, and rightly or wrongly, Ms Williams stepped into that breach.

54. There are, I think at this stage, question marks about both parties, and I would be naive to think that Ms Williams is, to use the vernacular, squeaky clean.  I do not think it can be said she is squeaky clean.

55. Above all at this stage, I need to have some insight into the child’s emotional needs and where he feels he fits in.  This is a very complicated case.  On the one hand I have to bear in mind the importance of parents, particularly fathers and mothers. 

56. In this context, particularly the emphasis the father places on being a role model for X, there is, I think, a need for there to be a family report sooner rather than later.  Accordingly, I am going to order that there be one prepared as soon as that can be done, no later than 29 June.  I am told that that may not be possible, but I am directing otherwise, because I think that this is a case that dictates that it should be done sooner rather than later.

57. I am also going to order that the child be independently represented, because I consider that there is likely to be information relevant to each of the parties which they may not want to come before the court.  I reach that conclusion in part because I do not think Ms Williams was completely frank about some issues concerning her past.  It may be the case that the father is in a similar position.

58. I am placed in an invidious position.  There is no perfect outcome for this child at this stage.  I have to make a decision against an incomplete evidentiary background.  I have done my best to gather as much evidence as I can, but at this stage, I think it would not be in the child’s best interests to return to live in Brisbane in what I regard as an untested arrangement with his father being the sole provider of every aspect of his care. 

59. I appreciate that that will be heartbreakingly difficult for Mr Williams to accept.  The arrangement will be in place until sometime in the middle of the year, when the family report will be to hand, and also when there will perhaps be some input from the independent children’s lawyer concerned.

60. I appreciate that there is an artificiality about it, but having made that decision, Mr Williams is now in a position when he perhaps will need to make some unpalatable decisions about whether he can do what he proposed late last year and come to Adelaide and live here temporarily, or whether he will visit from time to time.  That is a matter for him, but I will put in place orders which deal with both scenarios.

61. It is regrettable that since February the father has not been able to spend time with X, and that, to some extent, does the grandmother no credit, but it reflects, I think, a common situation where court proceedings having been commenced, and parties fearing high-handed action, are prone to not do anything until there are clear orders in place. 

62. It is regrettable, I think, that this hearing was not listed earlier.  It is regrettable that Mr Williams was not served earlier, but I have no ability to change those things, and can only express my regret.  So for those reasons, I make the order as set out above.

63. I have not dealt with arrangements for handover.  I asked the parties when Mr Williams was thinking of leaving.  I have asked the parties to think about both such scenarios.  Regrettably, it falls to me to make these decisions.

64. 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 ten (110) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  29 May 2015