Fink & Mallander [2021] FCCA 1218 (14 May 2021)

Last Updated: 21 June 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fink & Mallander [2021] FCCA 1218

File number(s):	AYC 162 of 2021
Judgment of:	JUDGE MCNAB
Date of judgment:	14 May 2021
Catchwords:	FAMILY LAW – interim parenting – relocation application – where both parties previously resided in the Town B area – where the mother unilaterally relocated to the Town C area – where the father had previously informed the mother of his opposition to the relocation – where the father had informed the mother he would file an application seeking parenting orders and a recovery order if the mother relocated – consideration of principles relevant to determination of relocation cases – child’s best interests paramount consideration – where there is a benefit to a child having a meaningful relationship with each of their parents – where protecting a child from a risk of family violence or harm is a paramount consideration – where there are allegations of family violence – where the mother was ordered to return to Town B area
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60J, 68ZL
Cases cited:	Deiter & Deiter [2011] FamCAFC 82 Goode & Goode [2006] FamCA 1346 In the Matter Of: Re K Appeal [1994] FamCA 21 Morgan & Miles [2007] FamCA 1230 Sterry & Sterry [2017] FCCA 2255
Number of paragraphs:	39
Date of hearing:	14 May 2021
Place:	Melbourne
Counsel for the Applicant:	Ms E Swart
Solicitor for the Applicant:	Skinner & Associates
Counsel for the Respondent:	Mr T Byrne
Solicitor for the Respondent:	Berry Family Law

ORDERS

		AYC 162 of 2021
BETWEEN:	MR FINK Applicant
AND:	MS MALLANDER Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1. The Mother return the residence of the children X born in 2011 and Y born in 2013 (“the children”) to the Town B area by 4:00pm on 28 May 2021 and upon her doing so, the children continue to live with the Mother.
2. In the event that the Mother does not return the residence of the children in accordance with paragraph 1, the children live with the Father.
3. Pursuant to s67U of the Family Law Act 1975 (Cth) a recovery order issue addressed to the Marshal of the Court, all officers of the Australia Federal Police and all officers of the State and Territory police services.
4. The persons to whom this recovery order is addressed are authorised and directed to find, recover and deliver the children X born in 2011 and Y born in 2013 to the Father, MR FINK, or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the children may be found.
5. The operation of the recovery Order pursuant to Orders 2 and 3 be stayed until 4 June 2021.
6. The parties forthwith do all acts and sign all documents necessary to ensure that the children are re-enrolled at Town B Primary School forthwith and that the children recommence at Town B Primary School as and from 31 May 2021 or such earlier date as may be accommodated.
7. The Father spend time with the children as follows:

(a) On 29 May 2021 and 30 May 2021 from 9:00am to 5:00pm;
(b) Thereafter, each alternate weekend from after school or 3:30pm Friday to 3:30pm Sunday commencing 4 June 2021;
(c) For half of each Victorian gazetted school term holidays, from the conclusion of school on the last day of term to 5:00pm on the middle Saturday;
(d) For Father’s Day weekend, in the event that the children are not in the care of the Father, from after school or 3:30pm Friday to 3:30pm Sunday in lieu of the following weekend; and
(e) At such further and other times as may be agreed in writing between the parties (including via text message)

8. Changeover for the purpose of the Father’s time with the children is to take place at school on school days and otherwise at the Mother’s home at the commencement of time and the Father’s home at the conclusion of time noting that the parties are permitted to utilise agents at changeover.
9. Until such time as the children return to the Town B area, the children communicate with the Father by Facetime/Skype for up to 30 minutes between 6.00pm - 6.30pm each day, with the Father to call and the Mother to facilitate the call.
10. Each parent advise the other in the event that the children or either of them suffers any serious medical injury or illness, as soon as practicable after that injury or illness occurs, and provide the other with details of any treating practitioner.
11. Each parent is hereby authorised by these Orders to:

(a) Obtain at their own expense from the children’s school all notices, letters, school reports and invitations and to attend other activities to which parents are invited.
(b) Discuss all matters pertaining to the children’s welfare with their school and treating medical and allied health practitioners.
(c) Receive information and documents at their own expense from the children’s treating medical and allied practitioners.

12. The parents each keep the other informed at all times of their current residential address and contact telephone number and advise the other within 24 hours of any change to same.
13. The parents (themselves or through their servants or agents) be restrained by injunction from:

(a) denigrating the other, or members of the other party’s family, to or in the presence or hearing of the children or either of them and from permitting any other person to do so; and
(b) discussing any Court proceeding or the subject matter of them in the presence or hearing of the children.

14. The Mother be and is hereby restrained by injunction from relocating the children’s residence from the Town B area without the consent in writing of the Father or Order of the Honourable Court.
15. All extant interim applications be otherwise dismissed.
16. The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Families, Fairness and Housing in response to the Notice of Risk filed in these proceedings.
17. The parties and their legal representatives and Independent Children’s Lawyer (if appointed) are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

AND THE COURT NOTES THAT:

1. The information produced is confidential and cannot be disclosed to any other person without an order of this Court.
2. Penalties may apply pursuant to section 112AD and section 121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

THE COURT ORDERS THAT:

18. Pursuant to s 68L(2) of the Family Law Act 1975 the children (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they makes such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

(a) Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b) Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c) The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at (http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Children%27s+Matters/Independent+Childrens+Lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d) The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.

19. Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the said children attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 20 October 2021.
20. The Family Report to deal with the following matters:

(a) any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b) the capacity of each of the parents to attend to the emotional, physical and intellectual needs of the children, with reference to any medical issues of the children;
(c) the willingness and ability of each of the parents to facilitate and encourage the children’s relationship with the other parent;
(d) the nature of the relationship between the children and the parents;
(e) the likely effect on the children if the Court were to make Orders in terms of the Father’s/Mother’s proposed orders;
(f) any family violence within the definition of the Family Law Act 1975 which impacts on the living arrangements and parenting capacity of each of the parents;
(g) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(h) any other matters that the family consultant considers important to the welfare or best interests of the said children.

21. The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
22. If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;
(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and
(c) any family violence intervention or restraining Orders currently in force.

23. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
24. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
25. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.
26. 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.
27. 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 children 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.

28. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
29. The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on
    3 November 2021 at 10.00am for Final Hearing, with an estimated hearing time of 1 day (“the Final Hearing”).
30. The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 14 days before the trial.
31. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

(a) The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial;
(b) The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and
(c) The Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by the independent children’s lawyer at the final hearing not later than 7 days prior to the trial,

AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

(d) the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(e) the party has first obtained leave of the court.

32. Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:

(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60CC factors);
(e) a list of contentions relevant to the operation of s.65DAA;
(f) a list of any other contentions relevant to the decision; and
(g) the actual orders sought.

33. No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
34. Each party must have available for their witnesses copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing.
35. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

AND THE COURT NOTES THAT:

1. At the date on which a copy of the Report is to be 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.
2. Section 121 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.

100. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

4. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
5. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
6. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
7. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)

Judge McNab:

INTRODUCTION

1. This matter involves an application for parenting orders that was filed by the Father on 1 April 2021. That application was amended on 21 April 2021. In particular, the matter involves a relocation application for the Mother and the children to return to Town B following a unilateral move to Town C in the Town D region of Victoria. In the alternative, the Father seeks orders for the recovery of the children if the Mother were to not comply with orders for her to return to the Town B area. The Mother opposes the Father’s application, and asks that it be dismissed.
2. I must now make a decision on an interim basis in relation to parenting issues and the relocation application. In doing so I will give short form reasons, as I am able to do, pursuant to s69ZL of the Family Law Act 1975 (Cth) (“the Family Law Act”).
3. I note at the outset that this is a complex matter, but I have given consideration to the issues involved and I have been greatly assisted by Counsel, who appeared on behalf of both parties and who made detailed submissions with reference to the affidavit material, relevant legislation and authorities.

BACKGROUND

4. This application concerns two children, X born in 2011, and Y born in 2013 (“the children”). The children have previously lived with the Mother, the Mother’s partner and their half-sister in Town B.
5. The Father resides on a farm outside of Town E with his partner and the partner’s child from a previous relationship. The Father and his partner are expecting another child in 2021. The Father also has two other children from a previous relationship who live with their Mother.
6. In March 2021, the Father became aware that the Mother was intending to move to Town C, which is approximately a five hours drive from Town E.
7. On 17 March 2021, the Father’s solicitors sent a letter to the Mother stating, amongst other things, that if the Mother intended to relocate to the Town C area, then the Father would bring an application for a recovery order in respect of the children. The Mother responded to that letter by an email of 17 March 2021 at 2.32 pm, as follows:

[The Father] has not been told the entire circumstances, he has been given information from a secondary resource that I have not had any contact with since early January.
If there were to be a relocation I had no intention of keeping the children from their Father. They would still be seeing their Father as they are if not more due to the holidays and phone contact with a phone I would supply the children with.
The relocation would be due to work purposes and to remove my children from the toxicity they have encountered over the last few months from family members.
I had no intent to be unreasonable and feel that being threatened to have my children removed from myself is unreasonable and unnecessary, as I have not shown in any way to be an unfit Mother to my children.
I will be seeking legal advice.

8. On 31 March 2021, the Mother filed an intervention order application which raised allegations of family violence through the course of her relationship with the Father, including allegations of rape which was said to have occurred in 2015 and 2016. The Mother had previously filed an intervention order application against the Father on 23 May 2018, which was resolved after the Father gave an undertaking to the Court on 29 May 2018 that he would not commit family violence.
9. On 1 April 2021, the Father filed this application and, at that stage, the Father sought interim orders including that “the Mother be restrained from relocating the place of residence of the children away from the Town B area” and then made provision for spend time as between the children and the Father. The initiating application and other material was served on the Mother on 3 April 2021.
10. On 8 April 2021, the Mother moved with the children and her partner to Town C. Her partner is a public servant who applied for a transfer from Town F to Town G, where his family live, and the Mother has obtained work in the Town C/Town G area as an allied health worker. The children have been enrolled at the local school.
11. On 21 April 2021, as a consequence of the Mother’s move to Town C, the Father filed his amended application. By that application, the Father relevantly seeks final orders for the parties to have equal shared parental responsibility for the children, the children to live with the Mother and for the children to spend time with him each alternate weekend, half of all school holidays and various other public holidays and special events.
12. Further, and relevant to this hearing, the Father seeks interim orders that the Mother return with the children to their former residence in Town B, or within 20 kilometres of that address and for the children to be re-enrolled at their former school. The Father seeks that, if the Mother does not comply with those orders, a recovery order be made for the children. If the Mother returns to Town B, and continues to reside there, the Father seeks that the parties have equal shared parental responsibility, for children live with the Mother, and for the same spend time arrangements as sought by him on a final basis.
13. The Mother filed her response to the Father’s initiating application on 3 May 2021. By her response, the Mother relevantly seeks final orders that:

(1) the application for final orders sought by the Father be dismissed;
(2) the children live with her, and continue to reside with her in the Town C area; and
(3) the children spend time with and communicate with the Father in such a manner as is consistent with their best interests.

14. The Mother also seeks interim orders in respect of parenting arrangements as follows:

(1) the application for interim orders sought by the Father, in particular in respect of the relocation and/or recovery order, be dismissed;
(2) the children live with her, and continue to reside with her in the Town C area; and
(3) the children spend time with and communicate with the Father in such a manner as is consistent with their best interests, but with such determination of interim time be reserved pending the completion of a family report; and
(4) a family report be urgently prepared.

CONSIDERATION

15. A central issue in this case is the role of allegations of significant family violence and the effect those allegations have on the decision I have to make. By her affidavit filed on 3 May 2021, which was filed with her response to the Father’s initiating application, the Mother makes allegations of significant family violence, which is said to have occurred throughout the relationship, including physical and verbal abuse, and coercive conduct in relation to finances. The mother also makes allegations of rape against the Father, which is said to have occurred in December 2015, during the course of the relationship, and on 2 August 2016, where final separation occurred in June 2016.
16. The Father has denied most of the allegations of family violence, although he does admit that both parties have referred to each other in strongly derogatory terms, both in writing and verbally, throughout the course of the relationship and following final separation. The Father has admitted to punching a hole in the bathroom wall/door and sets out the circumstances of that occurring and says it was not directed at the Mother or in her presence, but otherwise the Father has denied the allegations of the Mother. In making those denials, the Father has given detailed and, in large part, cogent responses to the matters raised against him.
17. In reviewing the affidavit material, such as the exhibits to the affidavits of the parties and other deponents, including the Mother’s sister and the Mother’s partner, it is apparent that strongly derogatory language is commonplace in communications between all of the parties, including as between the Mother and her partner. I am not in a position to make any final determination about the veracity of the allegations of family violence, but I do note that they are significant and serious allegations on the one hand, and, on the other, that those allegations are denied.
18. I also note that these parents have been able to co-parent these children since separation in 2016 without requiring Court orders. The Father has spent regular and systematic time with the children, consistently spending alternate weekends with them.
19. Relocation cases are notoriously difficult and there is a significant body of case law dealing with the exercise of the discretion which is required to be exercised by the Court. The Court is guided by the principles set out in the Family Law Act that there is a benefit to a child having a meaningful relationship with each of their parents and that protecting a child from a risk of family violence or harm is a paramount consideration. Relevantly, s60B of the Family Law Act provides that:

(1) The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

20. As this is an interim decision, I am guided by the principles set out in Goode & Goode [2006] FamCA 1346. In particular, their Honours (Bryant CJ, Finn and Boland JJ) stated at [81] of that decision:

81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

21. I also have regard to the principles set out in the decision of her Honour, Boland J, in Morgan & Miles [2007] FamCA 1230. In that case, her Honour sets out at [59] what is, in effect, a checklist of principles for the determination of a relocation application, although, like most checklists, it does not limit what considerations can be taken into account by the Court, and instead is set out to assist Judges in making such decisions. Her Honour states at [59] that:

59. The case law, after the Reform Act and before the introduction of the Amending Act, demonstrated the development of a number of principles applied in determining parenting applications where one parent wished to relocate a child’s place of residence. Those principles included the following:

• The best interests of the child are the paramount but not sole consideration.
• The applicant is not required to demonstrate “compelling reasons” for the proposed relocation.
• A court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act, and may subject to procedural fairness considerations, formulate its own proposals in the best interest of the child.
• The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue of where the child or children should live – the relocation issue is not a separate issue
• That the objects and principles in s 60B (as it then was) informed or guided a court in applying the criteria relevant to “best interests” (then determined having regard to s 68F (2) factors).
• A court will take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.

22. Further at [88] of that decision, her Honour states in relation to interim relocation cases that:

88. [The difficulties of relocation cases] make it highly desirable that, except in cases of emergencies, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s stability may be extremely relevant on an interim basis.

23. The competing positions of the parties are that the Mother says that she has good reason to leave Town B. There is a breakdown of family relationships as between herself and her family, particularly her sister and mother, which she refers to in her correspondence of 17 March 2021, as set out above. The toxicity which she was referring to was not any toxicity as between herself and the Father but the toxicity as between herself and her family members. She also points to the fact that her partner, as a public servant, is able to move with his work to be stationed in Town G, which gives him career opportunities. She says in her affidavit that relocating to the Town D area has removed her from what she describes as the tensions as between herself and the Father, which have, in effect, given rise to the application for the intervention order made on 31 March 2018.
24. The Mother, by her Counsel, referred me to a decision of the Full Court of the Family Court in Deiter & Deiter [2011] FamCAFC 82 (“Dieter”), which is a helpful guide to how the Court’s discretion in relation to relocation matters might be exercised, particularly where family violence is an issue. I was also referred to a decision of Sterry & Sterry [2017] FCCA 2255, a decision of his Honour Judge Kelly of this Court. Those decisions are fact heavy and depend largely on the factual matrix in each case.
25. The Mother emphasises that allegations of family violence are a significant issue in this matter, and that there is also evidence of the tense, fractious relationship between the Father and her partner. The Mother’s partner also gives evidence in relation to that point by way of his affidavit filed on 3 May 2021.
26. Counsel for the Mother urged me to give consideration to the practicalities of any order for relocation, and it was pointed out that if an order was made for the Mother to relocate with the children back to Town B, that would involve her uprooting herself from Town C, where she and her partner have employment and where the children are enrolled in school, all in a tight timeframe, which would cause considerable inconvenience and expense. It was also submitted that the Mother will have to bear the expense of the relocation, in circumstances where the Father is making minimal, although perhaps lawful, contributions to child support.
27. Counsel for the Father raised, by way of response, that the Mother was put on notice that the Father opposed the relocation. It is said that the Mother’s application for an intervention order raises historical allegations which have not been raised previously and to which the Father has a response. He says that the timing of the intervention order application is designed to undermine any application that the Father might have brought to prevent the relocation to Town C. On that basis, the Father, in effect, questions the bona fides of the timing of the intervention order application by the Mother. He points to the fact that he has had longstanding involvement in the children’s lives, has had regular and significant time with the children and is in a position to look after them. In terms of practicality, the Father’s response is, in essence, that the practical difficulties in this matter are created by the Mother in failing to negotiate or discuss her move to Town C before she relocated, and that she proceeded with the relocation in the face of his objection and the anticipated application to this Court.
28. The Father distinguishes the cases relied on by the Mother in support of the relocation on the basis that this is not a case where the Mother relocated to escape an imminent or present threat of violence at the hands of the Father, as was the case in Dieter. The Father submits that this was a considered move made without consultation and without proper regard for the Father’s role as a parent.
29. The parties have had the benefit of an urgent s11F child inclusive conference, which was conducted on 13 May 2021. The Family Consultant who was involved in the conference helpfully provided a s11F report to the Court on the same day.
30. The Family Consultant sets out a narrative of the history of the relationship and a detailed account of the family violence allegations as made by the Mother. There is no particular focus by the Family Consultant in relation to the responses which have been given by the Father in his affidavit of 11 May 2021.
31. What is clear from the s11F report is that the children both have reasonably high needs. The eldest child lives with Attention Deficit Hyperactivity Disorder and Autism Spectrum Disorder. The report also indicates that both children have challenging and defiant behaviour and each child has a school aide to assist them. The report presents the parties as having a high degree of hostility towards one another and the children have been and are currently being affected by the actions of the parties. Under the heading ‘Issues for the Children’ the Family Consultant states at [34] – [37] of the report that:

34. Minimal weight can be placed on the children’s views in light of their exposure to adult conflict and their parents’ negative views and experiences. This has likely influenced X and Y’s views and familial relationships. If the parents continue in this vain, it is likely that X and Y’s relationships with their father/mother and significant others will be further damaged.
35. It is likely that the conflict and resentment between the parents will continue to affect future parenting arrangements. Mr Fink and Ms Mallander demonstrated limited skills in their co-parenting capacities and they will likely need professional support.
36. Given the current geographical distance between the parents, the increased travel time may impact on the frequency and, possibly, quality of the relationships the children continue to have with their father. X and Y’s cognitive capacities are reduced due to their young ages, developmental immaturities, and traits associated with their diagnoses. They will therefore struggle to make sense of their situation, and without adequate parenting support they may continue to struggle in all aspects of their development.
37. The children have encountered and continue to encounter instability and insecurity in their parenting and living (financial, housing, schooling) arrangements in Town B and Town C. It was acknowledged by the parents that despite the poor co-parenting relationship, while living in Town B the children had some stability in their arrangements (parenting, spend time, schooling, medical and health) over a period of approximately four years.

32. The Family Consultant correctly did not purport to try to determine the most appropriate location for the children to reside. That is clearly a matter for the Court. The recommendations that the Family Consultant did make were as follows:

39. X and Y commence video calls with their father.
40. X and Y spend time with their father on a regular basis, and additional time during school holidays.
41. Mr Fink and Ms Mallander refrain from sharing adult views and inappropriate information with the children.
42. X and Y will benefit if both of their parents were engaged and in communication with their schools and treating professionals.
43. The court will benefit from information from Victoria Police and/or Magistrates Court regarding the outcome of the criminal investigation and IVO application.
44. Mr Fink and Ms Mallander engage with a parenting support service, such as H Counsellors, J Families, or K Counsellors, to:

a. Increase their capacity and skills to manage and resolve parental conflict,
b. Develop their understanding of their children’s needs and how to meet those needs,
c. Access counselling to learn ways in which they can keep their adults issues separate from their children’s views and needs, and manage their own anxieties, and
d. Learn to implement future parenting arrangements in a child focused and respectful manner.

45. Ms Mallander access specific therapeutic intervention to assist her to process her alleged experiences of family violence.

33. This is a difficult and complex matter and, clearly, neither party has behaved perfectly in this matter. The allegations against the Father in relation to family violence raise serious issues about the way he is conducting himself. That said, at this stage, they remain allegations and there has been cogent responses made by the Father. I am also comforted somewhat that there is a current intervention order in place for the protection of the Mother if she was to return to Town B.
34. In my view, it is appropriate for the Mother to return to Town B with the children and, if she chooses not to do that, for the children to relocate to live with their Father. The Mother’s relocation to Town C was done unilaterally. It was organised without any consultation with the Father. I understand the submission that, in circumstances where family violence is alleged, the need for consultation between the parties may fall away, and I was referred to s60I of the Family Law Act. Subsection s60I(9)(b) permits the Court to hear an application under Part VII of the Family Law Act in relation to a child without the need for a family dispute resolution certificate to be filed with the Court, as required by s60I(7), where:

(b) the court is satisfied that there are reasonable grounds to believe that:

(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings;
...

35. However, there was communication between the parties and, at the time when the communication was made on 17 March 2021, the Mother’s concerns were not with the Father but with the other members of her family.
36. There are practical issues involved in this relocation, as in any case of relocation. However, I understand that the Mother has had long-term rental accommodation in Town B and that she may return there or, alternatively, there will be other accommodation available there. Whilst there has been no breach of a Court order, for the Mother to take the steps that have been taken, in the face of the Father communicating his opposition to the move and foreshadowing an application to this Court if she did relocate, is in effect inviting the Father to make the application which he has made.
37. I am strongly persuaded by the views of the Family Consultant, in particular, by the Family Consultant’s views in the s11F report dealing with the issues for the children, their need for stability and to have a relationship with each of their parents. The children’s capacity to spend regular and significant time with their Father is substantially and detrimentally affected by the Mother’s relocation.
38. Given the high level of conflict, which is apparent from the material and which has been referred to by the Family Consultant, as well as the serious allegations of family violence and the fact that both these children have significant needs, this is a case where an Independent Children’s Lawyer would be of great assistance. For these reasons I am of the view that it is appropriate to appoint an Independent Children’s Lawyer having regard to the matters set out in the decision of In the Matter Of: Re K Appeal [1994] FamCA 21.

CONCLUSION

39. For these reasons, I will make the orders that I have pronounced. As set out above, I have delivered short form reasons which I am able to do pursuant to s68ZL of the Family Law Act.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated: 2 June 2021