Bander and Anor and South

[2009] FamCA 1115

FAMILY COURT OF AUSTRALIA

BANDER AND ANOR & SOUTH [2009] FamCA 1115

FAMILY LAW – CHILDREN - With whom a child lives

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Bander

APPLICANT: Mr Bander

RESPONDENT: Ms South

FILE NUMBER: SYC 3511 of 2009

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 24 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: Belbridge Hague

COUNSEL FOR THE RESPONDENT: Mr Halliday

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

Orders

1. That …, born … November 2006 (“the child”), live with the wife.

2. That the wife is hereby entitled to live with the said child in Sydney.

3. That by consent the child shall spend time with the husband as follows:

   a.   from 10:00am on Saturday 5 September 2009 until 5:00pm on Sunday 6 September 2009 and every 2^nd and 4^th weekend thereafter between the same times in Sydney; and,

   b.    from 10:00am on Saturday 30 October 2009 until 3:00pm on Sunday 4 October 2009 and every 6^th weekend thereafter between the same times in the H district.; and,

   c.   for the purpose of spending time pursuant to order 3(a) the husband shall collect the child from and return her to the maternal great-grandmother’s residence; and,

   d.   for the purpose of spending time pursuant to order 3(b) the wife shall deliver the child to and collect her from the paternal grandparents’ residence.

4. That by consent each party shall hereby be at liberty to communicate with the said child by telephone while she is in the care of another party between 9:00am an 7:00pm on any day and for that purpose each party shall provide each other with a current contact telephone number and inform them forthwith of any change in that telephone number.

IT IS NOTED:

1. That the parties agree that the matter should remain for final hearing at the Parramatta Registry of the Federal Magistrates Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3511 of 2009

MR BANDER

Applicant

MS BANDER

Applicant

And

MS SOUTH

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by the applicant father in relation to interim orders which were made by a state magistrate in Wodonga on 28 April 2009.  The magistrate ordered that the child, who was born in November 2006, live with the mother.  He also ordered, although I do not understand how he could, that she and the child live with the maternal great grandmother; that is, the wife’s mother, in D, a western suburb of Sydney. 

2. As the matter is a rehearing, I do not have to concern myself about the jurisdiction of the magistrate to make orders that require the wife to do anything.  Also, as it is a rehearing of an interim matter, I am not in a position to decide issues of fact.  I can only decide the proceedings on the basis of the facts which are not disputed and the respective allegations made by each party and, if it is appropriate, a consideration of which of those respective allegations might be found to be true or untrue. 

3. After the orders were made by the magistrate, the parties consented to orders for contact.  The orders which were made by consent were to the effect that in each cycle of four weekends the father was to see the child on two weekends; from 10 am on Saturday morning to 5 pm on Sunday on one of those weekends and on the other from 10 am on Saturday to 3 pm on Sunday, with the longer contact to be in Sydney where the father was to collect and return the child.  The shorter of the weekends involved the requirement that the mother travel with the child to H and deliver her to the father then receive her back on Sunday at 3 o'clock so she could return to Sydney with her.

4. The father seeks interim orders that the child live with him or his mother.  His mother is a party, although I cannot understand why because she is simply seeking the same orders as the father. She seems to have no specific interest which would warrant her becoming a party. The issue of whether or not she should remain a party is not before me today, so she does remain one.

5. The father seeks equally shared parental responsibility and an order that the mother not remove the child from the H district.  He asked that the child live with the mother from Monday at 9 am until Thursday at 5 pm in each week and on a few special days.  He also seeks to transfer the matter to a federal magistrate in Albury.  I should say that the State Magistrate in Wodonga transferred the ultimate hearing to the Federal Magistrates Court at Parramatta. 

6. The mother seeks that the child live with her, and that she have sole parental responsibility.  She asks that the father have contact with the child on alternate Saturdays at 10 am until the immediately following Sunday, in each instance at 4 pm, and on Father’s Day between 10 am and 4 pm, with the father to collect the child from her home and return her to it. 

7. The mother seeks an order for drug testing of the father, whereas the father simply wants an order that neither party consume illegal drugs or excessive alcohol at any relevant times.

8. The only relevance of the orders made by the magistrate is in their effect, in that it is relevant for this court to know what has happened since the orders were made and why that has happened. 

9. Both parties are very young.  The father is aged 22, having been born in 1987.  Until he was 16 he lived in the northern coast region with his mother.  When he was seven he was injured in a car accident.  The mother says that the car was being driven by his mother, who she says was under the influence of drugs.  The connection between drugs and the northern coast town may not be coincidental, but is irrelevant at this stage.

10. The mother says that, as a result of this injury, the father received about $500,000 in damages when he turned 18.  She claims that he had spent most of this money on drugs within a year of receiving it, and that she received none of it. When the father was 16 he moved to H to live with his father and step-mother.  However, on receiving the damages, he moved to W on the central coast where he met Mr South, the mother’s brother, who he says introduced him to the drug scene.  Mr South and the father moved to Sydney together, where the father met the mother.  The mother says that she has known the father since 2004 but only commenced living with him in 2009, in January of that year. 

11. The father’s story is that they met in May 2005 and they have been living together most of the time since then.  The only times that they ceased to live together were occasions when one or the other left home for short periods as a result of immediate conflict. The father says that he and the mother moved to Queensland in 2005.  Both were involved in the drug scene.  The father admits that he was involved in drugs while in Queensland and that there is still an outstanding warrant for his arrest on charges of possession of drugs. 

12. He says that those charges will be dealt with by a magistrate and he already has them in hand in that they are being dealt with by a solicitor and that he is unlikely to be imprisoned for them.  I am unable to say whether that is true, but I am very conscious of what he says about his continuing drug use.  He says that he has not continued to use ice or other “heavy” amphetamines and that he has been off these for three to three and a half years. It is significant that it was put in this way, because the mother alleges that he still uses drugs and that it is clear from what he says, that he has not denied using drugs other than ice or “heavy” amphetamines.  The father says he moved to Sydney with the mother in late 2005 and stayed for six months before moving to H when the mother became pregnant. 

13. As the child was born in November 2006, on his story the move must have taken place in February or March 2006. 

14. The mother is aged 20.  She was born in 1989 so had the child when she was just 17 years of age.  She says that since she first met the father, he has been a drug taker and in addition has suffered bouts of depression and also suffers pain relating to his legs.  That he is likely to have suffered pain seems to be confirmed by the fact that he recently needed an operation on his knee.  She alleges that his drugs of choice were cocaine, ice and marijuana.  She says that he continues to take drugs and smokes marijuana every day.  He does not seem to have denied this.

15. The mother left home early.  Her background seems to have been as drug related as that of the father.  She says the reason she left home early was her father’s drug taking.  However, she says that when the child was born she was living in Sydney in her own home.  At the time, according to her version of events, the father was living separately at a nearby suburb. She says, at that time and until the child was born, she had been in employment whereas the husband had not.  She says that he was dealing in drugs as a way of earning an income and that that was the reason why she refused to allow him to live with her.  She claims that the father would only see the child when he visited her and would not make visits for the specific purpose of visiting the child. She claims that this situation continued until the beginning of 2008.  She says she decided to move to H because the father promised to give up drugs and wanted to move to H to get away from the drug scene he was then in.

16. However, she says that when they arrived in H they did not live together, but that the father lived with his father and step-mother and she lived separately in her own home.  Nevertheless, she must have lived with the father for significant periods because she complains about the standard of the accommodation.  In particular, about the fact that for a while she was expected to live with him in a caravan on his parent’s property and that the caravan was unsuited for two people and a child. 

17. She says that while she was living on her own in H, however, the father continued to fail to specifically visit the child but only saw her when he specifically visited the mother.  She got a part-time job while she was in H. Despite not working, the father did not care for the child. According to the mother, his mother did.  His mother’s interest in these proceedings seems to provide some weight to that claim. 

18. The mother says that despite the move and the intention involved in it, the father did not give up drugs after that move.  The father and mother married as recently as March 2009.  The mother says that she married the father in the hope of improving their relationship.  This did not work, as must soon have been apparent because the parties separated finally only days later on 10 April 2009. She says that at the time they were living in H in a home which was so dilapidated it flooded each time it rained and that the walls themselves were coming away from the frame because of the dilapidated condition of the house in general and that there were problems with the roof as was demonstrated by the leakage. 

19. On separation, the mother came to live in Sydney.  She had intended to move into a flat with her grandparents who live in D.  However, because the flat is being renovated, she moved into their main home where she still lives and the child has her own room.  On the evidence, there does not seem to be any other persons living in this home.  The evidence seems to also indicate that the grandparents are unremarkable people who have had good jobs for a significant period and at least one of them, because she is a JP, could not have had problems with the law. 

20. It is significant that there is no specific criticism of the wife’s parenting of the child or of the grandparents in general or specifically or of their living circumstances.  The father says the mother’s parents and brother are either violent, involved with drugs or both.  But the wife is not living with these people.  He says that, nevertheless, the wife associates with her mother, at least, and her mother’s involvement with the child as well as that of the other members of the mother’s family is undesirable. He points to an incident which must have occurred more than a year ago between the mother and her mother and a man who called at the mother’s mother’s home.  The mother and her mother were charged with assault and other inappropriate behaviour.  As a result of this incident, the mother pleaded guilty and received a 24 month good behaviour bond.  These are her only convictions. 

21. She says that the incident itself is illustrative of the father’s undesirability as the primary care taker of the child because the man who called at the home was looking for the father in order to try to get money which he claimed was owed to him for drugs which the husband obtained from him.  Of course, I cannot tell where the truth lies. 

22. The mother is very critical of the father, his family and the circumstances in which they all live.  The father lives in the same home as his father and step-mother.  It is a mobile home which is fairly new. His 13 year old half sister also lives there.  The mother says that the home is not only too small and unsuited because of its impermanent nature, but it is habitually untidy and dirty.  She is also critical of the fact that the home is in a rural area and of the farm practices carried out in that area which she says are not suited to or are inconsistent with the needs of a two and a half year old child.  She is also critical of the father’s father, who she says is a keeper of illegal firearms, and claims that this is consistent with the father being violent too.  She alleges that on one occasion he held a knife to her brother’s throat and during the same incident stabbed another man in the hand.  The incident, it seems, involved a dispute over the ownership or fate of the drug, ice. 

23. The husband says that he has settled down.  He points to the fact that he had a job since June 2008 earning $640 per week.  He says that he could therefore subsidise the rent and a rental bond for the mother if she is to live in H but he also accepts that she could live in Y or G.  H is on the highway between Y and G and is about 60 kilometres from each.  It has a small population, but is very poorly served by public transport. Of course, the husband says that he is prepared to subsidise the wife in the same way if she were to live in Y or G.

24. Unfortunately, I do not regard myself as having any jurisdiction to impose upon the husband any order that he subsidise the rent or pay a bond as a condition of the wife moving to H, Y or G.  It seems to me that I could not impose such a condition directly because that would be either a spousal maintenance or child maintenance order or both and that what I cannot do directly, I should not do indirectly.

25. The wife says that she wishes to start studying or attend TAFE to do courses associated with nursing so she can eventually qualify as a nurse.  She says that her grandparents can babysit when she needs to go to TAFE. 

26. The husband says that in the event that the child lives with him, on days when he would work, his step-mother could look after the child.  The husband says that the wife could go to TAFE in G.  The trip between the husband’s home and the wife’s home takes about nine hours by car and considerably longer by bus and train or whatever public transport may be available. 

27. The orders of the Magistrate have not been complied with on about two occasions.  Once the mother refused to travel by train to H, she does not drive and because she had no car or licence, claimed to be justified in not complying. In my view, in the light of the fact that the train which travels to H returns from there only about an hour later and the next train comes the next day or after midnight, that seems to be a reasonable claim.  The wife does not drive because she has no car or a licence.  Her income is solely from social security benefits and child support. 

28. The husband has had an operation on his knee recently.  He could not drive a manual car and could not borrow an automatic one, so in July also missed contact once because it would be too difficult to travel in those circumstances.  He did not consider travelling by train as the wife has always done.  He claims the car travel is exhausting.  He usually leaves after work on Friday and stays overnight in Sydney and starts contact on Saturday morning.  After returning the child on Sunday evening he gets home at midnight or later.

29. I accept that the travel involved in weekend contact for the father by car is exhausting.  There is no reason to consider that it would not be and the wife does not suggest that it is not exhausting.  However, the travel for the wife and the child would be even more exhausting if she were to travel, as she and the child have been doing, between Sydney and H by public transport.  It takes longer, involves a number of separate trips and types of transport and waiting time. 

30. One would assume that the actual travelling time for weekend contact if the wife is to travel to H from Sydney by public transport, with or without the child, would involve approximately 24 hours or only a little less. Things would not be as simple as that because of the difficulty involved with train timetables.  Specific evidence is not before me specifically, about when a train to Y might leave on Friday evening or Friday morning or about when it might return on Sunday evening or Monday.

31. The wife says that if she must live in H she will be isolated because she does not drive and because of the problems with public transport which I accept are substantial.  The husband does not submit otherwise.  However, she does not need to live in H because the husband concedes that G or Y would be appropriate places for her to live in the event that the Court orders that the child continue to live mainly with her, but that she not be entitled to take the child out of a particular area near where the husband lives.

32. The evidence discloses that the wife’s best friend lives in Y but she has no other relatives living there.  There is no evidence that she has any support in the area although the husband’s step-mother made a show of offering support to her if she should move back to the area.  I was not impressed by that show and regard it with real cynicism.

33. The wife has a number of serious and potentially life threatening medical problems.  Her treatment is centred in Sydney but there is no reason why it could not be transferred to G or Y where there are medical facilities of a significant nature. 

34. Section 60B of the Family Law Act sets out the objects and principles which are to be applied in children’s proceedings for the purpose of achieving the objects which the same section states.  The objects are to ensure that both parents of a child have meaningful involvement in that child’s life to the maximum extent which is consistent with the child’s best interests; to protect the child from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence; to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties and meet their responsibilities in raising their children. 

35. The principles which underline these objects are that children have a right to know and be cared for by both parents. Children also have a right to spend time on a regular basis with, and communicate equally or regularly with, both parents, as well as other people significant to their care, welfare and development, such as grandparents.  Parents should jointly share the duties and responsibilities of caring for and raising their children.  Parents should agree about the future parenting of their children. Children have a right to enjoy their culture.  All of these principles are subject to a condition that they should only be applied in practice where the application is not contrary to a child’s best interests.

1. Section 60CC of the Act provides for the method by which the Court is to determine a child’s best interests, and I shall return to this.  Section 60CA provides that the best interests of a child are paramount in determining what parenting orders should be made for it.  This does not mean that only matters relating to the child’s best interests can be considered.  The parents’ own needs are to be considered, but they play a less dominant part in the determining what orders should be made for the residence of children and other matters relating to their upbringing.

2. Section 65DAA of the Family Law Act provides a code for the Court to deal with residential and other parenting orders. Section 65DAA(1) applies if a parenting order provides, or is to provide, that the child’s parents are to have equal shared parental responsibility for the child.

3. In this case, as the husband is seeking such an order and therefore there could be such an order, I must consider the matters provided for in section 65DAA(1). They are that whether it would be in the best interests of the child to spend equal time with each parent, and whether that would be practical or reasonably practical, and if it is, consider making an order for the spending of equal time of each parent.

4. In this particular instance, were I to allow the child to live in Sydney with the wife at times when she is to live with the wife, it would only be practical to make an order for equal time in the event that the husband moved back to Sydney and/or gave up his job in H.  It certainly would not be practical to share time with the child if the wife lives in Sydney and the husband continues to live and work in H. 

5. It is to be noted that the husband has not offered to move to Sydney.  Any other situation would be quite impractical, in view of the travelling time.  In fact, it seems to me that if I were to permit the child to live in Sydney with the mother for half the time, and in H with the father for half the time, because the father would be at work during the day, the child would really be living with her grandmother, so there would not be equally shared time between the parents.  So such an order is completely impractical, in the light of the husband’s failure to suggest that he would leave his job if he was given equal time residence of the child.

6. The alternative, of course, is that the mother move to H or G or Y.  In this particular instance, I am extraordinarily concerned about the effect of such a move on her and her ability to care for the child.  She has, before the final separation, come to Sydney to live on other occasions because she found it difficult to live in H, but considering her age and her social situation - that is, lack of money in particular, it seems to me that she has chosen, on separation, the best option available to her; to live with her grandparents, who appear to be stable, in normal circumstances.

7. Her age is of particular concern.  She is, after all, only 20 years old, and somebody with a child at that age really does need, in my opinion, family support, if she does not have the support of her husband or a wide circle of friends and others.  The evidence suggests that the husband’s family has a circle of friends in H, but makes no suggestion, apart from the existence of one friend, that the mother has support in H.  Of course, in G and Y, there is no suggestion she has any friends or support, and it is still 60 kilometres from H, with poor transport between them.

8. In my view, it is not reasonably practical for the wife to be put in a position where, in order to continue to care for the child, she must live in the G/Y/H area.  The reason why it is not practical is, in my opinion, whereas there has never been a problem with the child’s care to date - and, unquestionably, the mother, on any view of events, has been her primary carer and has cared for her well - destabilisation of the wife, which is a risk of such a move, creates a risk for the child.

9. I think that is a matter of practicality.  This is a case where one must look at the reality.  The reality is that currently, according to the only evidence before me, there is not the slightest complaint about the mother’s care of the child, in circumstances where she has come to Sydney and is receiving appropriate and adequate support.  Anything to change that risks the child’s welfare. 

10. So I am of the view that it is not reasonably practicable to require the child to not be removed from the H area if she lives with the mother.  Of course, one could leave her to be cared for by others than the mother.  However, although I accept that the husband’s step-mother has a good relationship with the child, and has cared for her from time to time, particularly when the husband is supposed to be caring for her, a move to H in those circumstances for the child defeats the objects of the Act, which is for the parents, not a step-grandmother to care for a child.

11. In those circumstances I have to move on to section 65DAA(2). It provides that if a court does not make an order for the child to spend equal time with each parent, the court has to consider whether the child should spend substantial and significant time with each parent in its best interests, and whether it is practicable for such time to be ordered. If it is, the court should make an order for substantial and significant time with each parent. For the very same reasons that I have regarded equal time impractical, I regard substantial and significant time to be impractical. This is because of what substantial and significant time really means.

12. Time with one parent is only substantial and significant if the time that the child can spend with the parent includes days which fall on weekends and holidays, week days, and where the time the child spends with the parent allows that parent to be involved in the child’s daily routine and special occasions of significance to the child and to the parent.  It would only be practical for there to be substantial and significant time with the father, assuming for the moment that the child will continue to live mainly with the mother, if the child lives in the H area, or the father moves to Sydney. 

13. In the event that the child lives with the father substantially, she will really be being mainly cared for by his mother, because he works five days a week and this child is not of school age, unless the father was to move to Sydney. There is no suggestion that he is prepared to do that.

14. Thus, I am left to decide the outcome of these proceedings on the basis of what I have said, and I have not decided the outcome yet, in combination with the matters which must be considered pursuant to section 60CC, that is, based upon the child’s best interests.  Section 60CC is in two parts.  There are principal considerations which must be undertaken in determining what is in a child’s best interests.  These are: the benefit to the child of having a meaningful relationship with both parents.  There is no doubt that this child, whatever the faults of either or both parents are, will still benefit from having a meaningful relationship with both, rather than only one.  The allegations about each of the parties are not so serious as to warrant the Court, prima facie, reaching a decision that the child might be better off not having contact with one parent or the other. 

15. The next consideration of a primary nature is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Each party suggests that the child will be exposed to some form of family violence while in the care of the other party.  I am not in a position to determine which of the allegations is true, and it may be that they are both true.  However, I am in a position to say this.  There does not seem to be any indication that if this child is cared for by the mother, and the mother is not in contact with her mother or father or brother when she has the child with her , that the child will be exposed to physical or psychological harm as referred to in section 60CC(2)(b).  There is no complaint about the mother’s grandparents and there is no complaint about the mother’s current drug use.

16. The additional considerations should be dealt with in the order in which they appear in the Act in section 60CC(3).  Of course, although they are only called additional considerations, it may be in the circumstances of a particular case one or more of these might be more important than the other considerations which are called the primary considerations, although I am not able to say that that is the case here.

17. The first of those additional considerations is the views expressed by the child.  She is simply too young to express any views, and nobody has suggested that she has done so.  The next matter to be considered is the nature of the relationship between the child and each parent as well as other important people.  It seems clear that this child has been, to a very high level, cared for primarily by the mother, and that as a result of that nobody suggests she is not getting on well or that there are any deficits in that care.

18. It is alleged, and does not seem to be disputed, that she has a good relationship with her father and her step-grandmother and, possibly, her step-grandfather and aunt, that is, the father’s 13-year-old half-sister.  One can assume, because if there is babysitting needed at the moment it is probably done by the mother’s grandparents and they are offering to be the babysitters in the event that the mother needs to take time to study, that the child has a good relationship with her maternal grandparents. There is no evidence about other relatives of any substance. 

19. The next matter to be considered is the willingness and the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  There does not seem to be any real indication to suggest that either of the parties are unwilling to encourage a good relationship with the other parent.  All of the evidence goes to matters that do not suggest that either parent has tried to interfere with this child’s relationship with the other parent or tried to undermine it.

20. In fact, the parties are to be complimented on this as well as the fact that neither of them really complains about the actual parenting of the other, although the mother says that the father has not been, when they were not living together, attentive enough to this little girl’s care in the sense that he did not visit her enough.  But I cannot say where the truth lies about that, in the light of the father’s claim that he has always taken part in her care. 

21. I am not satisfied that there is a real risk that either parent will actively try to discourage the development of a proper relationship between the child and the other parent. 

22. The next matter to be concerned with is the likely effect of change in circumstances including separation of the child from either parent or any other important person in their life, particularly one with whom they have been living.  There is no doubt that the child has been living with her step-grandfather and grandmother.  If she remains in Sydney, she will see less of them and there will be more attenuation of that relationship.  There is also no doubt that the child more recently has been living with her grandparents on her mother’s side.  If the child is required to live in the H area, she will see less of them and her relationship with them is likely to deteriorate. 

23. The child has not seen much of her father since April when the parties separated.  In effect, she has had alternate weekend contact or a little less than that.  In the event that the child continues to live with the mother in Sydney this is not likely to change much and the child is not likely to be, in the short term, undermined in her psychological development by it because she is missing her father.  However, if the child moves to live with the father, she will be separated, even if the wife moves to H or the surrounding area, from her primary attachment; that is, the mother, in a very significant way because there is no doubt that the mother has mainly cared for the child throughout her life and done it well, especially for her age. This risks the child suffering psychological trauma and short and long term harm and should be avoided in the child’s best interests.

24. If the child is required to live in the H area, but is allowed to live primarily with the mother, that change also has, in my view, a significant risk inherent in it.  Whereas the child is progressing well, because there is no evidence to suggest otherwise, the likely stresses on the mother and loss of support and the difficulties of life in general, in living in the area where the father lives, are likely to undermine the mother’s wellbeing and this risks an adverse effect on the child.

25. The next consideration is the practical difficulty and expense of spending time and communicating with one parent or the other and whether those difficulties will affect the right to maintain optimum relationships with both parents.  Here, for the reasons I have already referred to, the practical difficulties are substantial and for the parties, the expenses substantial. The father is living on an income which by ordinary standards is insufficient for people to live properly on and the mother is living on less. 

26. The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, is the next matter to be considered.  There is also a requirement to consider the capacity of other persons in their lives to make these provisions.  It seems to me that the financial constraints on each of the parents are such that they will have difficulty providing for this child’s actual material needs unless things change.  That the mother is able to live with her grandparents alleviates her difficulties with finances.  In the event that the mother moves to the H area and the child continues to live mainly with her or equally with her, the father has promised to contribute a significant part of his income in addition to child support to subsidise the wife’s ability to live in the area.  That this acknowledges the mother’s inability to afford to do so otherwise should not be overlooked.  That such subsidising puts further constraint on the parties because it involves an expense which would not otherwise occur, is not an inconsiderable matter.

27. As for the parties other problems, of course, transport is expensive for the purpose of contact and I should not overlook that.  Although presumably, if the mother has to travel backwards and forwards by public transport to H from Sydney, she will do it at the rate that people on pensions are able to, and that is not a great expense.  However, the costs to the father of travelling by car or public transport to Sydney and return every second weekend or something like that, in view of his other outgoings and income, should be regarded as substantial.

28. I cannot say at this stage what the parties’ capacity to provide for the child’s intellectual needs are or what the paternal grandmother’s or grandfather’s ability to do so are.  It may be able to be said with only slight more confidence that the maternal grandparents, because of their more established situation in life, might be better able to provide for this child’s intellectual needs, but I am not satisfied that that can be held to be the case.

29. As for the parties’ capacity to provide for the child’s emotional needs, it seems at this stage, that there is nothing about the mother’s care of the child to indicate that she is not in a position to provide for the child’s emotional welfare.  After all, it is not alleged that she is currently a drug user or that her grandparents are.  As for the father’s capacity, the allegation against him is that he is a drug user and the allegation about the way of life of his father and step-mother may indicate that there is some deficit in his ability or the paternal step-mother’s ability to meet the child’s emotional needs, but I cannot conclude that there is an inability to do so, just that there is a risk that they may not be able to do so.

30. The other matter that I must consider or the next matter that I must consider is the issues of maturity, sex, lifestyle and background including culture, which are relevant.  It seems to me that the only really relevant matters are that the child is only two and a half years old, that she is leading a settled life with her mother at her great-grandmother’s home and that her lifestyle, if she is to live in the H area, is likely to be less settled whether it is with the mother or the father.

31. The next matter to be considered is the attitude to the child and to parental responsibility demonstrated by each of the child’s parents. I cannot determine what has been demonstrated, because I cannot decide the facts.  I can only rely upon allegations at this stage; the more serious allegations relate to irresponsibility are by the mother against the father.  Any lifestyle which involves drug-taking, illegality or the like by a parent is, in my opinion, demonstrates an inappropriate attitude to a child and to the responsibilities of parenthood.  The mother alleges such a situation, whereas the father no longer alleges it against the mother, although he does allege it against the mother’s parents, but not her grandparents.  The greater risk in this particular instance for the child is if the mother’s allegations are true than if anything the father says is true.   

32. Family violence is a matter which both parties seem to allege to some degree.  Again, the mother’s allegations about violence seem to be about more serious matters than those of the father.  There is no suggestion that any family violence order is of any relevance in these proceedings or that there has been any.

33. The Court has to consider whether it is preferable to make the order least likely to lead to institution of further proceedings relating to the child.  One must not lose sight of the fact that these are proceedings which will go on to further proceedings.  These are only interim proceedings, but the word “institution” relates to the commencement of fresh proceedings. It is always preferable to make an order which would avoid fresh proceedings, or nearly always, however, one must recognise that some orders are likely to increase the chances of fresh proceedings than others.  Whatever I might do, it seems to me, the chances of the institution of fresh proceedings will be little different.  There are problems in anything that I might do.  Those problems I have already referred to and may result in the need for one party or the other to institute fresh proceedings in a particular instance.  I do not think in this matter I can make orders which are less likely to lead to fresh proceedings than any other orders.

34. Finally, I have to consider any other fact or circumstance which I think is relevant.  I have already mentioned all matters which I think, either alone or in combination with other matters, including other matters which have not been mentioned, could make a difference, so there are no other facts or circumstances which I think should be mentioned.  Even though there are some that are relevant, they are not significant.

35. Considering all of the matters, I think that for this child’s welfare I should order that the child be permitted to live in Sydney and that the mother have her residence.  I should then consider what orders to make about the father’s contact.  I am conscious of the fact that the continuation of the situation that now exists is, with a child of this child’s age, likely to undermine the child’s relationship with her father. I think that the most important thing for this child’s welfare is to keep the situation as it is, because the child does not seem to be at risk and seems to be doing well and is properly cared for by the mother, who does not seem to have any problems other than financial problems and a problem with travel for the purpose of contact between the child and the father. I think that to change the current situation involves more risk to the child than to maintain that situation, despite the fact that the child’s relationship with her father and paternal family will be undermined.  The risk to her of this is still less than the risk to her of undermining the mother’s stability and, therefore, her progress in the mother’s care and of undermining the mother’s ability to care for her which would be involved in moving and requiring the child to live in the Y/G/H area.  As I have said, if the child was to do that, she would either live with the mother and have the mother’s welfare undermined and, therefore, hers, or be separated from her mother, a situation which would put the child not only in real risk of psychological harm but probably in the principal care of the paternal step-grandmother rather than the father. That is not something that the Act encourages and it is not something that I think would be in this little girl’s best interests.

1. So I shall make orders in accordance with what I have said.  The parties should be given the opportunity to see if they can agree on some contact regime.  They have done so in the past.  It is possible that they can do so in the future.  In the event that they do not, I have already come to a conclusion about what that regime should be and I shall make orders and explain my orders as part of this judgment.  However, I shall adjourn the judgment to give the parties the opportunity to come to some agreement.

2. I am pleased to say that in the time that I have given the parties, and this is the continuation of my judgment, the parties have agreed on contact orders and I shall make orders in accordance with their agreement. As for any of the other orders that are sought by the parties, apart from the orders that go directly to residence and the place of residence, they are matters which should be left until the final determination of these matters, except for the issue of where the matter should be heard.  I will simply note that the parties agree that the matter should be transferred from here for final hearing to the Federal Magistrates Court at Parramatta, as the magistrate originally ordered.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  25 November 2009