BEATE & LAMSON

[2015] FamCA 501

FAMILY COURT OF AUSTRALIA

BEATE & LAMSON [2015] FamCA 501

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother unilaterally relocated to Perth from Sydney two days after being served with the father’s Initiating Application – Where the child is an eight month old baby – Approach of Goode & Goode – Best interests of the child – Mother ordered to return to Sydney with the child until the next court event – Father ordered to provide for their return and stay in Sydney – Application to transfer proceedings to Family Court of Western Australia dismissed – Appointment of an Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CC, 61DA

Cales & Cales (2010) FLC 93-459
Cowling & Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286
Morgan & Miles (2007) FLC 93-343
Sampson & Hartnett (No. 10) (2007) FLC 93-350

APPLICANT: Mr Beate

RESPONDENT: Ms Lamson

FILE NUMBER: SYC 3428 of 2015

ORDERS MADE: 19 June 2015

DATE DELIVERED: 1 July 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 18 June 2015

REPRESENTATION

COUNSEL FOR THEAPPLICANT: Mr Cummings SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THERESPONDENT: Lavan Legal

Orders made 19 june 2015

IT IS ORDERED UNTIL FURTHER ORDER

1. That the mother’s application for the matter to be transferred to the Family Court of Western Australia is dismissed.

2. That the child B born … 2014 (“the child”) shall live with the mother.

3. That no later than 7days after the date of the father:

   (a)paying to the mother an amount equivalent to the agreed cost of a return economy class airfare for both the mother and the child to travel from Perth to Sydney; and

   (b)paying the sum of $5000 to the mother;

   the mother shall forthwith return the child to reside within the Sydney metropolitan area.

4. That in the event that agreement cannot be reached as to the amount payable pursuant to order 3(a) the amount shall be the lesser of the price advertised by Qantas and Virgin airlines for a flexible return economy ticket as at 5pm on 19 June 2015. 

5. That the amount payable pursuant to order 3 shall be paid into the bank account as notified by the mother to the father in email dated 10 June 2015 or as otherwise notified to the father’s solicitor by the mother’s solicitor.

6. That the mother is to remain within the Sydney metropolitan area with the child until 5 pm on 29 July 2015 or such other time as may be ordered by the Court.

7. That during her time in Sydney, the mother have exclusive occupation of the property situated at C Street, Suburb D NSW … (“Suburb D property”) except for the purposes of facilitating changeover of the child for the purposes of these orders.

8. That commencing from the date of the mother’s arrival in Sydney the child shall spend time with the father as follows:

   (a)Saturday, Monday, and Wednesday for up to 2 hours per day from 10.30am until 12.30pm; or

   (b)any other time as agreed between the parties in writing.

9. That for the purposes of order 8 if the mother elects within seven days from the date of making these orders that it is her preference not to have direct contact with the father at changeover, changeover shall be facilitated by one of the father’s siblings, by that person collecting the child from the Suburb D property at the commencement of the father’s time and returning the child to the Suburb D property at the conclusion of the father’s time.

10. That forthwith on the mother’s return to Sydney with the child the father do the following acts and things:

    (a)Pay the rent on the Suburb D property as and when it falls due pending the hearing on 28 July 2015;

    (b)pay the water rates, electricity and natural gas expenses for the Suburb D property pending the hearing on 28 July 2015; and

    (c)provide a motor vehicle with a suitably installed baby capsule for the mother’s use pending the hearing on 28 July 2015.

11. That for such time as the mother and child are in Perth, if requested by the father, the child shall spend time with the father as follows:

    (a)Saturday, Monday, and Wednesday for up to 2 hours per day from 10.30am until 12.30pm; or

    (b)any other time as agreed between the parties in writing.

12. That for the purposes of order 11 the changeover shall occur by the father collecting the child from the property located at E Street, Suburb F (“the Suburb F property”) at the commencement of the father’s time and returning the child to the Suburb F property at the conclusion of the father’s time.

13. That pursuant to section 68L(2) an independent children’s lawyer be appointed on behalf of the child AND IT IS REQUESTED that Legal Aid Commission of New South Wales arrange such separate representation.

14. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

15. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

16. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the Court in the proceedings and released to the parties.

17. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

18. That the time for any appeal against these orders be extended to commence from the time that reasons for judgement are provided.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3428 of 2015

Mr Beate

Applicant

And

Ms Lamson

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 28 May 2015 Mr Beate (“the father”) filed an Initiating Application seeking parenting orders in respect of his baby daughter B born in 2014 (“the child”). That Initiating Application was served on the child's mother Ms Lamson (“the mother”) on 2 June 2015 at 1.20 pm AEST. The mother departed Sydney for Perth on 4 June 2015. As a result of the father ascertaining that the mother had travelled to Perth, he filed an Application in a Case on 11 June 2015 (“the application”). The application received an urgent listing and was heard on 18 June 2015.

2. The application sought a number of orders; the main purpose of which is to compel the mother to return from Perth to Sydney with the child. The application was opposed by the mother who wishes to remain with the child in Perth.

3. It is common ground between the parties that the mother is the primary care giver of the child and that, in these formative months, it is appropriate for the child to live with the mother. Both parties also agree that it is appropriate that the father have time to see the child. As noted, the central issue is whether that time occurs in Perth or Sydney.

4. By way of summary, the mother argued that it is in the best interests of the child for the mother and child to remain in Perth where there is practical and emotional support for them. On the other hand, the father's primary argument is that the Court should have regard to the importance of the child bonding with her father through regular contact.

5. The orders I have made require that, subject to the father providing for the mother and child's accommodation, transport and living expenses, the mother is to return to Sydney with the child and remain in Sydney until the further listing of this matter on 28 July 2015.

Time-limited orders made

1. This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning the potential relocation of a parent and a child in interim proceedings.

2. In Morgan & Miles (2007) FLC 93-343, Boland J said at [84] :

   The cases demonstrate that sensibly judges recognised that these very difficult cases, often with far-reaching consequences for the child, required the full investigation which can only occur at a final hearing or, now, by issues being identified and determined in a less adversarial trial as contemplated in Division 12A of Pt VII.

3. In the context of this urgent interim application, I am prepared to make orders concerning the place of residence of the mother and the child only on a short-term basis. In particular, before longer term arrangements are considered the Court will require more comprehensive expert evidence. The Court would also be assisted by submissions from an Independent Children's Lawyer (“ICL”) generally but, more specifically, in respect to balancing the short and longer term considerations as to what is in the best interests of the child.

4. Subject to a default order that I have made, the orders will therefore have effect only until the next court event. The default order is to ensure that, in respect to any period that the mother and child live in Perth, the father will be entitled to see the child. 

The approach of the court

1. The decision of the Full-Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. At [81]-[82] under the subheading "How should interim proceedings be conducted?" the Full Court said:

   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.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Competing proposals of the parties

1. The father’s application sought orders to the following effect:

   1.That the application be listed on short notice and all applicable rules be dispensed with.

   2.That leave be granted for the hearing of the relief sought in orders 3, 4, 5 and 6 on an ex parte basis.

   3.That the mother forthwith and no later than 48 hours after the date of the making of these orders return the child to reside within the Sydney metropolitan area.

   4.That a warrant issue and lie in the registry authorising and directing the Marshall, all officers of the Australian Federal Police and the Police Force of all States and Territories of the Commonwealth of Australia to take possession of the child and to deliver the child to the applicant father forthwith at his residence situated at [J Street, Suburb D] NSW ...

   5.That upon the father filing an affidavit setting out the mother's non-compliance with order 3 hereof, pursuant to section 67Q of the Family Law Act the Marshall of the Court, all officers of the Australian Federal Police and State and Territory police officers are requested to find and recover the child to the applicant father and for that purpose to stop and search any vehicle, vessel, aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

   6.That any member of the Australian Federal Police and all Officers of the Police Force of all States and Territories be empowered to enforce any orders contained herein.

   7.That pending the hearing of the father’s application filed on 28 May 2015, the child shall spend time with the father as follows:

   7.1on Saturday, Sunday, Tuesday and Thursday each week from 9 am until 1 pm.

   8.That the father be granted leave to effect service by way of substituted service on the mother's email.

   9.That the mother pay the fathers costs of and incidental to these proceedings.

2. As there was an appearance on behalf of the mother, it was not necessary to consider the father’s application for an ex-parte hearing or for orders for substituted service.

3. The mother's response to the application sought orders to the following effect:

   1.The proceedings be transferred to the Family Court of Western Australia (FCWA).

   2.In the event the Family Court of Australia declines to transfer the proceedings at this stage to the FCWA, the proceedings be adjourned to the hearing scheduled to take place on 28 July 2015 to allow the parties to attend mediation with a registered family dispute resolution practitioner.

   3.In the event the family Court of Australia declines to transfer the proceedings to the FCWA or adjourn the proceedings to 28 July 2015, then until further order:

   3.1      the child live with the mother.

   3.2 the child's place of residence is to be Perth in the state of        Western Australia .

   3.3      the father spend time with the child in Perth as follows:

   3.3.1    if the father is in Perth for up to one hour three times             per week as agreed by the parties in writing or failing                  agreement from 9 AM to 10 AM each day; or

   3.3.2    any other time as agreed between the parties in   writing.

   3.4the time the father spend with the child in subparagraph 3.3 above is to take place at the maternal grandfathers ([Mr G]) home situated at [H Street, I Town] in the State of Western Australia, or at another location agreed between the parties in writing.

   3.5 the maternal grandfather to be present for the full duration of the time the father spends with the child in subparagraph 3.3 above, or any other person as agreed between the parties in writing.

   3.6 for the time set out in paragraph 3.3.1 the father is to provide the mother one weeks prior written notice of his intention to visit.

4. As a result of a concern that I expressed during the course of the hearing, regarding accommodation and financial support for the mother and the child if an order is made for them to return to Sydney, senior counsel for the father prepared draft short minutes of order that modified the orders sought in the application to remove those provisions relating to ex-parte hearing and substituted service and which included the following additional paragraphs:

   5.That commencing from the date of the making of these orders, the child shall spend time with the father as follows:

   5.1Saturday, Monday and Wednesday from 10:30 AM until 1:30 pm.

   6.That within 48 hours of the mother presenting the father with a receipt or tax invoice for payment of her airfare from Perth to Sydney the father will reimburse to the mother's nominated bank account the cost of that airfare.

   7.That forthwith on the mother's return to Sydney with the child the father do the following acts and things:

   7.1pay the sum of $5000 to the mother as a one-off payment;

   7.2pay the rent on [C Street, Suburb] NSW … ("[Suburb D] property"), as and when it falls due pending the hearing on 28 July 2015;

   7.3pay the water rates, electricity and natural gas expenses for the [Suburb D] property pending the hearing on 28 July 2015.

   8.That the mother have exclusive occupation of the [Suburb D] property except for the purposes of facilitating changeover of the child for the purposes of these orders.

   9.That for the purposes of order 5 if the mother elects within 48 hours from the date of making of these orders that it is her preference not to have direct contact with the father at changeover, changeover shall be facilitated by one of the fathers siblings, by that person collecting the child from the [Suburb D] property at the commencement of the fathers time and returning the child to the [Suburb D] property at the conclusion of the fathers time.

Issues in dispute

1. In this matter I have considered the affidavits filed by the parties, including those filed in court on 18 June 2015.

2. Both parties acknowledge that the fundamental task before the Court is to make such orders as are in the best interests of the child. While the father's case was largely based upon concerns regarding the mother's alleged unilateral relocation, senior counsel for the father did not argue that, if the Court made a finding to that effect, an order should be made with a view to penalising the mother's conduct. With respect, senior counsel for the father was correct in adopting that approach.

3. The affidavits filed on behalf of the parties raise a number of issues but for the purpose of determining this urgent interim application I have primarily focussed on the following issues:

   1.Did the mother unilaterally relocate herself and the child from Sydney to Perth without the consent of the father?

   2.Did that relocation occur in circumstances where the mother was aware there was an application for parenting orders before the Court?

   3.What are the relevant matters to consider in determining what is in the best interests of the child?

   4.In considering what is in the best interests of the child, the need to balance:

   1.the fact that the mother has greater physical, financial and emotional support in Perth and thinks she is "able to be the best mother that she can be" to the child in that environment; and

   2.the need for the child to have a continuation of regular and frequent contact with the father in order to establish and maintain an attachment relationship.

Agreed or uncontested facts

1. I have identified the following facts as being agreed or uncontested :

   1.The parties met in November 2012 and commenced living together in Sydney in an apartment owned by the father's parents in July 2013.

   2.The father lives in and operates a business in Sydney.

   3.During the mother's pregnancy, she made several visits to her family in Perth. On some of those visits the mother was accompanied by the father.

   4.The parties travelled to Perth for the purpose of the mother giving birth to the child.

   5.The mother remained in Perth until 14 November 2014. As will be indicated below, the father initially accompanied the mother and made several visits to Perth during this period.

   6.Subject to cross checking flight records, which is not possible at this stage of the proceedings, it appears that the mother has, since the child’s birth, returned to Perth on the following occasions:

   1.10 December 2014 until 30th of December 2014;

   2.10 March 2015 until 26 March 2015;

   3.7 May 2015 until 24 May 2015;

   4.4 June 2015 until the present;

   7.Again, subject to the checking of flight records, it appears that the father has either accompanied the mother and child to Perth or visited the mother and child in Perth on the following occasions :

   1.From 23 September 2014 (being the date of birth of the child) until 30 September 2014;

   2.from 3 October to 12 October 2014;

   3.from 19 October to 22 October 2014;

   4.from 2 November to 6 November 2014;

   5.from 22nd December to 30 December 2014 and

   6.from 19 May 2015 to 24 May 2015.

   8.The mother has suffered from a degree of emotional vulnerability since the birth of the child (although its cause is not agreed).

   9.The mother is the primary care giver of the child with the mother continuing to provide comfort breastfeeding to the child on average three times per day.

   10.Both of the mother's parents reside in Perth as do the mother's two brothers who are aged twenty-eight and twenty-two.

   11.In Perth, the mother and child have accommodation at the maternal grandmother’s home where they live with the grandmother and the mother’s younger brother.

   12.While there was insufficient time to traverse all issues when this matter was heard on 18 June 2015, there did not appear to be any challenge to the assertion by counsel for the mother that the mother had access to a motor vehicle while she was in Perth but that she had no such access when she was in Sydney.

   13.In Sydney, the mother currently has access to a one-bedroom third-floor studio apartment in Suburb D. There is no lift to the apartment.

   14.There did not appear to be any challenge to the assertion by counsel for the mother that the apartment is currently on a month to month lease.

   15.The mother has given consideration to travelling to Sydney during the month of July for a possible work opportunity but nothing has been confirmed in that respect.

   16.It would be an overstatement to suggest that the father conceded that the mother would be lonely in Sydney. However, it was not disputed that on Tuesday 2 June 2015 at 1.41 pm AWST, the father sent to the mother's father a text message which relevantly included the following statement: “Thanks [Mr G], I think you should have a chat with [Ms Lamson] when you can I feel for her because she has no one here in Sydney at the moment and I don't want her to feel alone.”

Issues of controversy

1. In Cowling & Cowling (1998) FLC 92-801 the Full Court said at [18]:

   The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

2. In the abridged process of this urgent application, I am not able to determine allegations that the father engaged in violence, as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”), against the mother. That issue should properly be dealt with in the trial process, possibly applying the rules of evidence. But in view of the allegations, the Court needs to take a cautious approach at this early stage of the proceedings.

3. Another issue of difficulty is, whether prior to the commencement of these proceedings, there had been an agreement between the parties for the mother to return to Perth with the child. I note the evidence is ambiguous in that respect and that issue should also properly be dealt with in the trial process.

4. It is common ground though that the mother travelled from Sydney to Perth after she had been served with the father’s Initiating Application. 

Section 60cc factors

1. The extent of uncontested evidence that has been presented in this urgent interim application is not such that I am able to provide more than a limited consideration of those matters set out in s 60CC. It is nonetheless a task that I am required to undertake with a view to determining what is in the best interests of the child. 

2. I have found it convenient to have regard to the criteria set out in s 60CC(3) of the Act before giving consideration to those set out in s 60CC(2). Those provisions that I consider to be of most relevance to the determination of this interim application are discussed below.

Section 60CC(3)(d) - the likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from:

i) either of his or her parents; or

ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. I have had regard to the fact that separation from the father at this formative stage of the child's life may impact upon the child's ability to establish a meaningful relationship with her father.

2. In that respect, I refer to the affidavit of Mr K (“Mr K”), sworn on 18 June 2015 and filed in court on that day. That affidavit attaches a letter from Mr K to the father's solicitor dated 17 June 2015 wherein Mr K expressed the following opinion:

   Attachments that are formed in the first 6 months of life are consolidated thereafter through the continuation of regular and frequent contact. It would be inevitable that the strength of the attachment between the father and the child will diminish in the absence of such regular and frequent contact. Moreover, when the strength of the attachment diminish as the re-establishment of such attachment is an extremely difficult process because the child will come to view the father as a stranger and will respond with normative stranger wariness.

3. It is to be acknowledged, that in preparing his report, Mr K did not have the benefit of material provided to him by the mother nor did he have the opportunity of interviewing either of the parents or witnessing the interaction between the child and the parents. Nevertheless, Mr K is known by this Court to have considerable expertise and extensive experience in this area and his opinion must be given some weight.

4. Regrettably, at this stage the Court is not in possession of any evidence as to the strength of the child's bond with the maternal grandparents and other relatives who reside in Perth or the consequences of the child's separation from them if the child is returned to live in Sydney. This is no criticism of the mother's legal advisers who have done quite a remarkable job in assembling the evidence that they have been able to present to the Court in the limited time available.

5. They are, however, matters that require further consideration before an order of long-term consequence is made.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. Perth is on the other side of the country to Sydney. If the mother continues to reside in that city, there will obviously be considerable expense and difficulty for the father in spending time with the child.

2. There is, however, no evidence before the Court as to whether it is practical for the father to move to Perth to live or, alternatively, spend time there on a regular basis. Again, these are possibilities that would need to be fully explored before an order of long-term consequence is made.

Section 60CC(3)(f) - the capacity of each of the child's parents and any other person (including any grandparent or other relatives of the child) to provide for the needs of the child including emotional and intellectual needs

1. There are no criticisms made about the mother’s parenting ability and it is noted that she appears to be providing capably for the physical needs of the child, including breastfeeding. 

2. The evidence before me is not such that I am able to make a determination as to the extent to which the father has provided for the needs of the child as contemplated by s 60CC(3)(f). In that respect, there has been no criticism of the father’s parenting but the mother's counsel drew the Court’s attention to the periods during which the mother and child have been separated from the father while they have been in Perth.

3. It is nonetheless the case that if the mother and child remain in Perth the father will have limited future opportunity to provide for the emotional and intellectual needs of the child unless he is able to move to Perth or travel there on a regular basis.

4. Further, once again, in the context of this urgent application for interim orders, it is difficult to make an assessment regarding the capacity of any other person including the child's maternal grandparents or other relatives, who reside in Perth, to provide for the needs of the child.

5. Similarly, the Court has not had the opportunity to more fully explore the extent of support the mother currently receives from her family to assist her in providing for the needs of the child and how that would be impacted if she is required to reside in Sydney with the child.

Section 60CC(3)(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. The child is an eight month old baby who is being breast fed by her mother. For the foreseeable future, the mother will remain the primary care giver of the child. In the time available, evidence was not presented as to the extent to which the mother’s psychological and physical health would impact upon her ability to care for such a young child. This is an issue of great importance and should be the focus of detailed consideration before an order is made that has long-term consequences.

2. This criterion is particularly relevant to the Court's rejection of orders 4 and 5 of the father’s application (the recovery orders) which would require the child to be taken from her breast feeding mother by a government official, transported to the airport and flown across the continent on an approximately four to five hour flight to Sydney.

3. I note and agree with the observation of Judge Monaghan in Olson & Spindler [2014] FCCA 1055 where he said at [56]-[57]:

   Given that recovery orders involve the intervention of state and federal police, it can be quite traumatic for children as well as for the parties themselves. In deciding whether or not to make such an order, the Court, pursuant to s.67V, must regard the best interests of the child as the paramount consideration, using the legislation pathway already identified. In other words, the test for making parenting orders is exactly the same test for making recovery orders.

4. It would be inappropriate for the Court to consider making such an order without evidence as to the impact of such a traumatic event on the child's physical and mental well-being.

5. No such evidence was placed before the Court as to that possible impact. The Court would only consider making such order in respect to such a young infant in exceptional circumstances and this is not such a case.

Section 60CC(3)(m)  any other fact or circumstance that the Court thinks is relevant

1. The evidence presented to the Court indicates that the mother had formed the intention of returning with the child to Perth prior to the commencement of these proceedings. It is unclear, on the currently available evidence, as to whether the father consented to that course of action.

2. Nevertheless, when she was served with the Initiating Application in this matter on 2 June 2015, it is clear that the mother was made aware that any such consent, that she believed had previously been given, no longer existed. Despite being made aware of the proceedings the mother nonetheless decided to travel with the child from Sydney to Perth.

3. In Morgan v Miles (supra), Boland J said at [87]: "As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant."

4. In C and S [1998] FamCA 66, Warnick J (as a member of the Full Court) said:

   In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.

5. As noted, in this urgent interim application, I am not in a position to determine the extent to which issues of "abuse or violence" may have motivated the mother's decision to move to Perth and, in those circumstances, I must give weight to those decisions. As noted, in so doing, I have only been prepared to make orders with effect for a limited period.

Section 60cc(2)

1. Section 60CC(2) provides that the primary considerations that I am required to apply in determining what is in the best interests of the child are:

   a. the benefit of the child having a meaningful relationship with both of the child's parents; and

   b. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Neither party submitted that the child has been subject to violence or abuse. There is insufficient evidence, at this stage, to make a determination as to whether there is a risk of the child being exposed to family violence. There has been no suggestion of such a risk in respect to the child being in the company of the father without the presence of the mother. 

3. Senior counsel for the father suggested orders that the mother can elect to have a person other than herself present at the changeover of the child to spend time with the father. While senior counsel for the father challenged the allegation that any such violence has occurred, such an order will nonetheless remove the possibility of family violence occurring between the father and the mother and will ensure that the child is not exposed to any such violence.

4. Section 60CC(2)(a) is particularly relevant to my determination of this matter. In that respect, I have considered the affidavit of Mr K and specifically the potential consequences of the child having difficulty in establishing and maintaining attachment to her father if the father is unable to have regular and frequent contact with her.

Presumption of equal shared parental responsibility

1. Section 61DA relevantly provides:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   a. abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   b. family violence.

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

2. In this urgent interim application, I have not been presented with sufficient evidence to enable me to determine that it would not be appropriate for the presumption to apply. Accordingly the default position is that the presumption applies. I am to consider making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests or impracticable. I do not propose at this stage to make an order for the child to spend equal time with each parent. The child is being breastfed and is heavily dependent on her mother. In any event, the father has not sought such an order. Similarly, I am not persuaded that substantial and significant time is in the child's interests, at least not in the circumstances of this current application. There is no family report or sufficient expert evidence that provides a proper basis for the Court to consider this matter. I note, in particular, that this is a relocation case and, depending on the Court’s assessment of relevant evidence when it is available, including submissions from the ICL, it may be that the Court permits the mother to relocate with the child to Western Australia. Such a determination, if it is made, may impact upon the Court's more detailed consideration of the application of s 61DA.

Application to adjourn and transfer the proceedings to the family court of western australia

1. At the outset of the proceedings I considered and rejected an application by counsel for the mother to adjourn the proceedings to enable the parties to attend mediation with a registered family dispute resolution practitioner. I note both parties have indicated a preparedness to attend mediation. The sole dispute in that respect is whether it occurs in Perth or Sydney. It is my expectation that ordering the mother to return to Sydney with the child, for the period set out in the order, will facilitate that mediation occurring. 

2. As previously noted, the mother also made an application for the matter to be transferred to the Family Court of Western Australia. That application was made on the basis of the mother continuing to reside in Perth. As at this stage, the Court has not agreed to that occurring and the application for transfer has been dismissed. There would be no impediment to the mother renewing such an application at a subsequent time if the Court, after proper consideration, considers that it is appropriate for the mother to reside in Perth with the child.

Conclusion

1. I have determined that it is currently in the best interests of the child for the mother to return with the child to Sydney to enable the question of relocation to be determined by the Court without that issue being distorted by the mother's recent travel to Perth with the child.

1. In making such an order I should not be taken as predetermining the outcome of any further application that may be made after additional expert evidence is available and the Court has the benefit of submissions from the ICL.

2. It is a serious matter for the Court to make an order that effectively restrains the freedom of movement of a person. In that respect, I have had regard to the decisions of the Full Court in Sampson & Hartnett (No. 10) (2007) FLC 93-350 and Cales & Cales (2010) FLC 93-459. For the reasons set out in this decision, including having regard to the principles adumbrated by the Court in those cases, I have decided to place a time limit on the period that I will require the mother to live in Sydney with the child. That period will be up until the next court event. At that time these matters can be given further consideration with the benefit of additional evidence and submissions from an ICL.

3. I have also taken into consideration that the mother had at least contemplated travelling to Sydney for a possible short-term employment opportunity with the child in the month of July. I acknowledge that no firm arrangement had been made in that respect, however, such a journey was at least within the contemplation of the mother.

4. I can indicate that, but for the concession of the father, during the course of the hearing, to ensure that the mother and child had accommodation and sustenance during her period in Sydney, I would have been reluctant to make an order compelling the mother to return to Sydney even for a short period of time.

5. I have also included an order for the father to ensure that the mother has access to a motor vehicle whilst in Sydney. I consider this important to ameliorate against any potential sense of isolation that the mother may feel in leaving her immediate family to return to Sydney with the child.

6. Having considered the matters which are relevant to the determination of this matter, I have therefore decided that it is in the best interests of the child to make the orders of the Court which are as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 1 July 2015.

Associate:     

Date:              1 July 2015