Ziller and Foster

[2014] FamCA 1115

FAMILY COURT OF AUSTRALIA

ZILLER & FOSTER [2014] FamCA 1115

FAMILY LAW – CHILDREN – Interim Orders – Best Interests of the Child – Family Violence - Where competing proposals – Where mother sought interim relocation – Where father sought an injunction restraining the mother from moving and consented to any time he would spend with the children to be supervised – Where ICL did not support either application and urged for present regime to continue – Where a number of allegations and counter allegations – Where Court noted such matters cannot be resolved in interim proceedings – Where mother has been primary carer for most of the children’s lives – Where live issues of family violence alleged – Where issue to consider whether the father presents a risk of harm to the youngest child - Where allegations of domestic violence during relationship – Where two oldest children have strong antagonistic opinions of the father and given the children’s age such views would be given some weight absent any countervailing consideration – Where Court noted any relocation would unlikely effect any real change in the children’s relationship with the father – Where children not presently spending time with the father – Where Court noted that to permit interim relocation would create a practical impediment to the father succeeding at trial in re-establishing some relationship with the children by virtue of increased distance – Where Court not satisfied that is would presently be in the children’s best interests to relocate on an interim basis - Where Court noted it was not able to make interim orders for a re-introduction of time and communication with the father due to matters that are unable to be determined at interim hearing.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Ziller

RESPONDENT: Mr Foster

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 1052 of 2011

DATE DELIVERED: 8 December 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 8 December 2014

REPRESENTATION

THE APPLICANT: In Person

SOLICITORS FOR THE RESPONDENT: Ross Lawyers

SOLICITORS FOR THE INDEPENDENT

 CHILDREN'S LAWYER :

M M Meehan

Orders

1. The mother’s Application in a Case filed 13 November 2014 and the father’s Response filed by leave on 8 December 2014, both stand dismissed.

2. The mother’s Amended Application in a Case filed 13 November 2014 be adjourned indefinitely.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ziller & Foster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1052 of 2011

Ms Ziller

Applicant

And

Mr Foster

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me are competing applications for interim orders in relation to the parties three children, B aged 14, C aged 12, and D aged four.  The mother’s Application filed 14 November 2014 seeks, in substance, that she be permitted to relocate on an interim basis to Town G in New South Wales, save that she would “return to [Town F] for the final hearing”.  The father’s Response filed by leave today sought an injunction restraining the mother from moving to New South Wales and a regime of orders including permitting the father to spend time with the children and communicate with them, albeit that during the course of her submissions Ms Hannemann, who appeared for the father, identified that he would be prepared to accept orders requiring his time with the children, if any, to be supervised at the F Contact Centre.  Ms Meehan who appears as Independent Children’s Lawyer did not support either of the parties’ applications, but urged that the present regime of orders most recently established on 17 February 2014 should continue. 

2. The applications fall to be determined in the light of the relevant provisions at Part VII of the Family Law Act, central to which is the statutory requirement that the children’s best interests are the paramount, but not sole, consideration.  Section 60CC establishes how those best interests are determined.  However, in interim proceedings such as this, it is always difficult for a court to make final conclusions in relation to the children’s best interests because, as in this case, there are allegations and counter-allegations made by the parties which in large part will fall to be determined by assessments of their credibility.  Those sorts of matters cannot be resolved in interim proceedings such as these.

3. Rather, the obligation on the part of the court is to identify any agreed or uncontroversial factual matters, and to then engage with the relevant section 60CC factors, mindful of the fact that where there are disputed matters conclusions cannot be reached. 

4. In reference to the considerations in section 60CC, I make the following observations.   There are two primary considerations.  The first of those is the benefit to the children of having a meaningful relationship with both of their parents.  There is apparently little contest that the children have a strong attachment to their mother and that she has been the primary carer for them for most of their lives.  However, it is plain, at least as reported to the family consultant in October of this year, that B and C have strongly antagonistic opinions of their father, and told the Family Report writer Mr L of their disinclination to have anything further to do with him.  However, it will be a live issue at trial as to whether those views, seemingly held by the children, have been spontaneously formed by them, or whether they have been the product of some form of influence by the mother.  That is not an altogether idle speculation, because Dr R in his psychiatric assessment of both of the parties formed the opinion, yet to be tested in cross-examination, that it is likely or at least possible that the children may be supporting the mother by making expressions of a disinclination to see the father, not because that is their view necessarily, but because they think that that might help the mother cope with her life.  As I say, those are matters that cannot be resolved on an interim hearing such as this.

5. Therefore, the extent to which the eldest two children would have a benefit from a meaningful relationship with the father is something which is presently difficult to reach any conclusion on.  The youngest child D, on the other hand, appears to have a more enthusiastic approach to the father and does not appear, at least thus far, to have expressed the negative views of the father which the older children have.  However, unfortunately during the course of the preparation of the first Family Report earlier this year, the father took the youngest child without the mother’s consent from the court precinct and retained her for some time.  It would appear as though that caused the youngest child some distress, but perhaps more importantly, seems to have influenced the older children’s negative views of the father to even stronger negative views.  All of these matters make it difficult in the extreme to form any concluded view as to the criterion in section 60CC(2)(a).

6. Turning then to the second primary consideration, which is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, there are live issues of family violence alleged here.  The mother has filed two Notices of Risk of Abuse and moreover there are allegations that have been made that the father has sexually interfered with the youngest child in some manner.  The relevant Departmental investigations have concluded that those notifications are unsubstantiated, however, it remains a live issue at trial to consider whether or not the father presents some form of risk, perhaps an unacceptable risk, of harm to at least the youngest child in the event that she were in his care.  Again, it is impossible to make conclusions about that matter on an interim hearing such as this. 

7. Further, there are allegations of extensive controlling behaviour and the like during the course of the parties’ marriage.  The father denies ever having been domestically violent.  Those are matters which cannot be pursued to a conclusion in interim proceedings. 

8. I then turn to a consideration of the additional considerations.  The first is any views expressed by the child.  Plainly strong views have been expressed by the older children, and given their age, those are views which would need to be given some weight absent any countervailing consideration, for instance, that their views are the product of coaching.

9. Further, it appears as though, from the Family Report, that the two older girls have a positive view of relocating to New South Wales.  At paragraph 49 of Mr L’s family report of 30 October 2014, he says as follows:

   On the issue of relocation from [north east Queensland] to [New South Wales], the views of the older children [B] and [C] are quite clear.  Whilst not unhappy living in Town F, they are both happy to move as they see it as a positive thing for their mother and her relationship with Mr [T] – who I interpolate is the mother’s partner – [the older children] both relate to him in a very positive manner, like him and are happy for him to become part of their family.  Both girls understand that it is primarily their mother and Mr [T’s] desire to move interstate, that they identify their needs as best met within the family unit of their mother and Mr [T], rather than in any particular location.  Whilst reasonably happy in their current schools and social environments they are adaptive children who will cope extremely well with a change of location given the supportive relationships they have with their family.

10. I do give those views weight, however, I note that both of the girls are presently happy in Town F and it is apparently their desire to support their mother which is in a large part influencing their views. 

11. I then turn to the additional consideration at section 60CC(3)(b), which is the nature of the relationship of the children with each of their parents and any other persons.  Here plainly the children have a good relationship with their mother.  It would appear as though they have a good relationship with the mother’s new partner Mr T, and it would appear as though the eldest two children have a poor relationship with their father.  The youngest child still has the reasonable foundation of a relationship with her father it would seem, subject of course to the question of any sexual abuse.

12. As to the criterion in section 60CC(3)(c), which is, to paraphrase, the extent to which the parents have been involved in the children’s lives, plainly the mother is central to the children’s lives at the moment and the father is not.  However, in large part the father says that his involvement in the children’s lives has been reduced by the mother’s actions, by initially relocating off the family farm and then relocating to Town F which has made his opportunities to spend time and communicate with the children more difficult.

13. As to whether or not it has been the mother who has been the primary cause of the father’s fractured relationship with the children remains to be seen at trial. 

14. As to the next additional consideration, namely the extent to which the parents have fulfilled their duties to maintain the child, the mother says, seemingly without contradiction, that the father has not contributed to the costs of maintaining the children for some time now.

15. The father on the other hand points to his financial circumstances.  He is a farmer who has been forced off the land by virtue of his bank appointing receivers over the two stations that he owned, and plainly the drought has impacted upon his ability to generate income, which he says he has not earned in any significant sense for quite some time.  Therefore, whilst it appears to be correct that the father has not maintained the children, it remains to be seen whether he has a legitimate basis for having not done so. 

16. I then turn to section 60CC(3)(d) which is the likely effect of any changes in the child’s circumstances which, of course, is a relevant matter of some moment given the prospect of relocation.  It is appropriate if in the context of this criterion, I consider the basis for the mother’s relocation.  The mother, it appears, formed a relationship during the course of this year with Mr T who is serving in the Australian Defence Force.  He has been posted from Town F to Town G.  I was told from the bar table by the mother that his posting takes effect in January.  The mother wishes to continue that relationship by moving with Mr T to New South Wales.  I do not understand her to say that she could not continue living in Town F in the event that relocation were not permitted, and indeed I note that in her affidavit filed in support of her application, she specifically contemplated that in the event that relocation were not permitted she would reside in her parent’s house in Town F because she would be unable to afford to continue to live independently in Town F.

17. Therefore, as I understand it, the mother’s proposal is based upon her desire to maintain a domestic relationship with Mr T, which has some benefits to the children, rather than any inability to continue to remain living in Town F, or indeed, any financial imperative which would see her unable to continue to live in Town F in the event she were not permitted to relocate.  I am mindful that the children appear to be somewhat settled in Town F, although the children will of course be going into a new school year in January. 

18. The move to New South Wales, if permitted, would be unlikely to effect any real change in the children’s relationship with their father, because at the moment it is non-existent, therefore there would not be, unless I acceded to the father’s application, any real prospect that the children would be spending time with their father whether they be living in New South Wales or north east Queensland.

19. Consideration 3(e) is the practical difficulty and expense of a child spending time with and communicating with the parties, or a parent.  Plainly, in the event that the children were to be living in New South Wales, that would increase the difficulty of them spending time with the father, noting that they presently are not doing so in any event.

20. As to sub paragraph (f), being the capacity of the parents to provide for the needs of the child including emotional and intellectual needs, save that there is a hovering allegation of the mother coaching the children and perhaps alienating the children from their father, or at least not supporting their relationship with him, there is no real criticism of the mother’s capacity to provide for the children.  On the other hand, there are both within the Family Report and in the material generally, serious criticisms levelled of the father’s capacity to provide for the children, particularly their emotional needs.  Particularly there are several allegations that the father has misconducted himself when communicating with the children in a way that has distressed them.  If this is correct, and that remains to be seen, that would reflect poorly upon his capacity to provide for their emotional needs.

21. Sub-paragraph (g) is not directly relevant in this case, nor is (h) directly relevant.  Sub-paragraph (i), which is the attitude to the child and responsibilities of parenthood demonstrated by the parents, is relevant, however, I do not stay to repeat what I have already said that is germane to this matter.  Sub-paragraph (j), which deals with family violence, is potentially invoked here.  However, it is not possible at the moment to make any findings in relation to family violence.  Sub-paragraph (k) is applicable in that there is a family violence order, however again, the basis for that remains to be investigated at trial.  Sub-paragraph (l) is the consideration that is preferable to make an order that would be least likely to lead to the institution of further proceedings.  Here the trial of this matter will take place in the next six months and therefore there is no real prospect of minimising litigation.  Sub-paragraph (m) is engaged here; it relates to any other fact or circumstance that the court thinks relevant.  I identify several matters, the leading of which is that a trial of this matter will take place shortly.  Further, in the event that relocation were permitted, it would create practical difficulties in the event that the trial were to conclude that the father should spend time with or communicate with the children, because by then the children would have settled in New South Wales in their new environment.  In a sense, to permit interim relocation would create a practical impediment to the father succeeding at trial in re-establishing some relationship with the children by virtue of the increased distance.

22. Further, I identify that the proposed move to Town G is not because of the mother’s employment, nor because the mother says that she would be incapable of maintaining parental capacity if she were to continue to live in Town F (as is not infrequently asserted in relocation cases) and in fact on the contrary, she identifies that the family would then move to live with her parents in Town F, which appears at least from the mother’s affidavit to be a suitable alternative. 

23. Weighing all of those matters in the balance, I turn to the mother’s application to relocate.

24. I am not satisfied that it would be presently in the children’s best interests to relocate on an interim basis to New South Wales.  They are settled here.  The trial will take place shortly and whilst there may be some benefit to them in continuing to form part of a household with Mr T, I am not satisfied that that factor outweighs the other countervailing factors.  I am therefore not persuaded that the children’s best interests require them to be permitted to relocate to Town G in New South Wales. 

25. I then turn to the father’s application which is to, in substance as finally explained by the father’s solicitor, commence supervised time with the children at the F Contact Centre.  Of course, the children B and C have expressed strong, even emphatic, views that they do not wish to have any further communication or spend time with the father and therefore it is unlikely that they would be willing, or indeed able to be coerced, to spend time with or communicate with the father as he proposed.  Moreover, significantly in relation to the child D, there is the question as to whether or not the father poses an unacceptable risk of harm to her, and, particularly whether he has in the past sexually misconducted himself with her.  Those are matters which I cannot determine on the material which remains untested on an interim application.

26. Therefore, I am unable to make any determination that it would presently be in these children’s best interests to have a reintroduction of spending time or communicating with the father.  I therefore am not persuaded to make orders as sought by the father in his response. 

27. My orders, therefore, will be that the mother’s Application filed 13 November 2014 and the father’s Response to that Application filed today are both dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 December 2014.

Associate: 

Date:  8 December 2014