Relocation response to family violence
Legal Principles Applicable
- Although this is the interim hearing stage, the same principles apply at the interim stage as apply at the final hearing stage. Whatever I do, I must be satisfied that it is in the best interests of the two children concerned. That is, I would contend, self-apparent.
- However, how I am to determine what is in the best interests of the child or children concerned is legislatively mandated, principally by section 60CC of the Family Law Act. That section contains what are called primary considerations and along the list of additional considerations.
- Turning to the primary considerations first, there are two of those and, again, those considerations are emblematic of the difficulty in this case. Firstly, I have got to think of the benefit to the children concerned of having a meaningful relationship with both of their parents, and, secondly, I have to consider the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
- In the past these two considerations have been referred to as twin pillars. That is not quite the case now because, as a consequence of some amendments to the Family Law Act particularly section 60CC(2)(a),
- I am now directed 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.
- So Ms Maddison, I think, would contend that because of the circumstances as she outlines them, I am required to give greater weight to the protective concerns which she raises than to the benefit of the children having a meaningful relationship with both of their parents.
- However, I do not think I can ignore that first consideration and the difficulty in this case is that I accept that, as matters currently stand, the children at this stage do not have any level of relationship with their father at all let alone a meaningful one. The children simply cannot maintain a relationship with their father over a weekly telephone call.
- “Family violence” is defined by section 4AB (1) of the Act. It means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
- The legislature has provided a list of examples of behaviour and some examples are an assault, repeated derogatory taunts, and stalking. Accordingly, family violence means not only violence which causes a family member to be fearful as a consequence of a direct assault to that person, but also it encompasses behaviour that unreasonably coerces or controls that person.
- Pursuant to section 4AB (3), a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effect of family violence.
- If Ms Maddison’s evidence is credible, the behaviour of which she complains undoubtedly falls within the characterisation of family violence as provided by the Act. She says that she has been rendered fearful and she feels controlled by Mr Maddison’s behaviour. If Ms M’s opinion is correct, it also seems to be undoubtedly the case that X has been exposed to family violence.
- Where family violence is endemic in parental relationships, it has the potential to be damaging for children in a variety of ways. Most obviously, children may be directly hurt by an episode of violence and certainly frightened by it, particularly if they see a much loved parent being threatened or assaulted.
68. More subtly, children learn their behaviour from their parents and parents who use violence to resolve disputes or who act out their emotional dysregulation are not appropriate psychological role models for children. So I am required to give greater weight to the very serious matters of family violence which Ms Maddison has raised.
- The difficulty, of course, is that there is controversy about how serious that behaviour was and whether it was a proportionate response to that behaviour for the mother and children to move several thousand kilometres away from the father when, at least in theoretical terms, there were avenues to protect the mother and the children available to her in Adelaide, which would not automatically result in the severing of a potentially beneficial relationship for the children.
- It is, I think implicit in Mr Maddison’s case that for Ms Maddison to relocate to Western Australia with the children that it represented a disproportionate response to the various issues raised between them, particularly given that Ms Maddison could, as she had done before, seek protection from the police and, indeed, from this court. The difficulty of her position is that she has acted unilaterally and, in effect, presented both Mr Maddison and the court with a fait accompli. 
- As a matter of public policy, I think, courts have to be careful before they endorse such unilateral action. Certainly that was the view taken in a number of cases, which are invariably cited in proceedings such as these. The cases are as C & S, a decision of Warnick J, and more recently a case of Boland J, Morgan & Miles.
- In Morgan & Miles Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. Her Honour 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 at 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 the comments of Warnick J in C & S remain apt and relevant to determination of these cases.
- Essentially Warnick J asserted that issues to do with the care and parenting of children should be determined, wherever possible, on a level playing field, not one skewed to the advantage of one parent who had acted unilaterally or in self-interest. These comments are particularly apposite to cases involving unilateral relocation.
- The mother’s case is that she was reacting to an emergency situation and acting to protect the children. The problem with that is that her action, although perhaps unjustifiable in the short to medium term, has the potential to have longstanding and detrimental consequences for the children. From the father’s perspective it is unfair to him and, as I say, potentially detrimental to the children to deprive them of having a father in their lives, perhaps for a very, very long period of time.
- Moving to the additional considerations, they are numerous. The wishes of the children are likely to be controversial. Ms M says X wants to stay in Perth, and certainly that would be the mother’s view in respect of all of the children. In my view, the proper way to assess what the children’s views are is to either have a family report or arrange for their independent representation.
- I have to think of the nature of the relationship the children have with each of their parents and other persons including grandparents and other relatives. On the basis of Ms M’s evidence and Ms Maddison’s own concession that if the father is not taking amphetamines he is a good father or at least has the potential to be a good father, it would seem that the children have a relationship with their father. No doubt it is currently under great stress. Certainly, the children know their father well, so this is likely to be a central relationship in their lives.
- At this stage it is difficult for me to assess the effect on the children of being separated from one of their parents. Again, this has come about because of the mother’s unilateral actions. The practical difficulty and expense of the children spending time with their father and communicating with him certainly face to face in the present circumstances must be great. That will have implications for the children’s right to maintain personal relations and direct contact with both their parents on a regular basis.
- What is the capacity of each of the parents to provide for the children’s emotional and intellectual needs is uncertain to me at this interim stage. I have already discussed at some length issues to do with family violence which are at the nub of this case.
- In my view, this is an extremely difficult and finely balanced case. It is trite but true that cases where a parent takes things into his or her own hands make for difficult decisions which have the potential to have unknown consequences. On the balance, I have come to the conclusion that Ms Maddison’s actions were disproportionate to the situation which prevailed to her.
- At the end of the day, I have come to the conclusion that it is a matter of public policy that the court should not easily approve or rubberstamp, after they have happened, the unilateral actions of parents. This difficult process involving allegations of a volatile relationship which is exacerbated by issues of financial and economic disadvantage is, in my view, better managed if the parties and children are in the same jurisdictional area. I do not think it can be managed if one party is in Western Australia with the children and one is in South Australia.
- I am wellaware of other issues in this case. As Gaudron J expressed in U & U, it may be inherently sexist to say to a mother that she has to move back or be restrained in moving when another parent, invariably a male, could move to where she is. Mr Maddison says he has not the money to go to Western Australia and it would be unfair to make him go given who left the state in the first place.
- In my view, this case needs careful management. An independent children’s lawyer should be appointed and an urgent family report be prepared. In this case, clearly it is not one to which the presumption of equal shared parental responsibility applies, but that does not mean that I should not consider the long-term best interests of the children, particularly the desirability of them having some form of relationship with their father.
- Relocation cases are difficult. They are difficult because they concern competing claims of right: the right of an individual to live where he or she wants and lead the life of his or her choosing; and the right of children to know and be cared for by both their parents. In relocation cases invariably these considerations come into conflict.
- Every relocation case is difficult and requires idiosyncratic consideration. There has been no such idiosyncratic consideration of Ms Maddison’s relocation. In my view, that is really the precipitating factor which has led me to the conclusion that the children need to come back.
- As I indicated, I will give Ms Maddison time to put her affairs in order which will also give Mr Maddison time to consider his position and what he is going to do about his life. I do not propose that the children come back until the end of the third term holiday in Western Australia. I am also, as I say, going to order the family report be prepared.
- This is the type of case, given that it is likely for the children to be expressing strong views, that they be independently represented, and it is also likely to be the case that they will benefit from having an independent person who can gather evidence independently of his or her parents.
- The mother’s position was that I should not order her return from Adelaide until such time as she had had an opportunity or the court had had opportunity to gather material from the police and Families SA pursuant to section 69ZW.
- I am going to make an order pursuant to section 69ZW but, in my assessment, it sort of begs the central issue in this case regarding the mother’s unilateral action that she asserts that the court should not deal with that until such time as it has gathered more information. In my view, the two things can be dealt with. So for those reasons, I am going to order as follows.
- I am going to adjourn the matter when it is anticipated the children will have returned to Adelaide and details of the progress of the family report elicited. I propose adjourning the proceedings to 14 October 2016. At that stage I anticipate each of the parties will have filed further material and I can assess ongoing arrangements for the children to spend time with their father if appropriate.
- So, for those reasons, the orders I am going to make are as set out at the commencement of these reasons for judgment.