COOLEN & COOLEN (No.2)
[2019] FCCA 2411
•24 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COOLEN & COOLEN (No.2) | [2019] FCCA 2411 |
| Catchwords: FAMILY LAW – Parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: AMS and AIF (1999) 24 Fam LR 756 KB & TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458 Malcolm & Monroe [2011] FamCAFC 16 |
| Applicant: | MR COOLEN |
| Respondent: | MS COOLEN |
| File Number: | PAC 4209 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 11, 12 and 13 June 2019 |
| Date of Last Submission: | 13 June 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 24 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Counsel for the Respondent: | Ms Spain |
| Counsel for the Independent Children's Lawyer: | Mr Sperling |
ORDERS
That the parents have equal shared parental responsibility for X born … 2018 (“X”).
That the child X, lives with the mother.
Within 56 days from the date of these orders, the mother shall do all acts and things necessary so as to cause X’s primary place of residence to be located in the Sydney Metropolitan area (such to be within a 30km driving distance of Suburb K, NSW) and until such time that this occurs, the arrangements as stipulated in the orders made on 1 February 2019 continue.
Within 7 days prior to the mother’s move pursuant to order 3, the mother shall do all acts and things necessary so as to notify the father in writing of her new residential address.
Upon the mother complying with order 3, the mother be and is hereby restrained from changing X’s primary place of residence to outside the Sydney Metropolitan area being more than a 30km driving distance of Suburb K, NSW.
Upon the mother’s compliance with order 3, X spend time with the father as agreed in writing between both parents, but failing agreement as follows:
Until … 2020 (when X is approx. 2 years of age)
In week one (and each alternate week thereafter)
6.1.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.2.Saturday from 8am to 12pm;
In week two (and each alternate week thereafter)
6.3.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.4.Sunday from 8am to 12pm;
From 1 February 2020 until 30 April 2020 (From approx. 2 years to 2 years and 3 months of age)
In week one (and each alternate week thereafter)
6.5.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.6.Saturday from 8am to 2pm;
In week two (and each alternate week thereafter)
6.7.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.8.Sunday from 8am to 2pm;
From 1 May 2020 until 31 December 2020 (From approx. 2 years and 3 months to 3 years of age)
In week one (and each alternate week thereafter)
6.9.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.10.Saturday from 8am to 5pm;
In week two (and each alternate week thereafter)
6.11.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.12.Sunday from 8am to 5pm;
From … 2021 until 31 March 2021 (From 3 years to 3 years and 3 months
In week one (and each alternate week thereafter)
6.13.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.14.Saturday from 1pm to Sunday 1pm;
In week two (and each alternate week thereafter)
6.15.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.16.Sunday from 8am to 5pm;
From 1 April 2021 until 30 June 2021 (from 3 years and 3 months to 3 and a half years)
In week one (and each alternate week thereafter)
6.17.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.18.Saturday from 8am to Sunday 1pm;
In week two (and each alternate week thereafter)
6.19.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.20.Sunday from 8am to 5pm;
From 1 July 2021 until 31 December 2021 (From 3.5 years to approx. 4 years)
In week one (and each alternate week thereafter)
6.21.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.22.Saturday from 8am to Sunday 5pm;
In week two (and each alternate week thereafter)
6.23.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.24.Sunday from 8am to 5pm;
From … 2022 to 31 December 2022 (From approx. 4 years to 5 years)
In week one (and each alternate week thereafter)
6.25.Wednesday from 3.30pm to 5.30pm;
6.26.Friday from 4.30pm to Sunday 5pm;
In week two (and each alternate week thereafter)
6.27.Wednesday from 3.30pm to Thursday 9am
From … 2023 and on an ongoing basis thereafter (from approx. 5 years)
In week one (and each alternate week thereafter)
6.28.From the conclusion of school on Wednesday or 4.30pm if X is not at school until before school Thursday or if X is not attending school until 9am;
6.29.From the conclusion of school on Friday or 4.30pm if X is not at school until before school Monday or if X is not attending school until 9am;
In week two (and each alternate week thereafter)
6.30.From the conclusion of school on Wednesday or 4.30pm if X is not at school until before school Thursday or if X is not attending school until 9am;
Notwithstanding anything else where contained in these Orders to the contrary, X spend time with the father as follows:
7.1.Upon X commencing school and commencing in the Term 2 school holidays of X’s first year of school, for one half of Term 1, 2 and 3 NSW school holiday periods being the first half in even numbered years and the second half in odd numbered years;
7.2.Upon X commencing school, for Term 4 NSW school holiday periods each alternate week such time to commence the first week in even numbered years and the second week in odd numbered years and for the purposes of this Order, such time to be for 7 consecutive nights commencing at 5pm and concluding at 5pm;
7.3.On the weekend that falls on Father’s Day, in 2020 from 9am to 5pm and from 2021 onwards, from 5pm on the Saturday preceding Father’s Day to 5pm Father’s Day;
7.4.On X or the Father’s birthday, if during the week from 5pm to 7pm and if on the weekend from 2pm to 6pm;
7.5.Provided such time does not fall pursuant to Order 7.1, during the Catholic Easter period, commencing in 2023 from 6pm Holy Thursday to 6pm Easter Saturday in even numbered years and from 6pm Easter Saturday to 6pm Easter Monday in odd numbered years;
7.6.Commencing in 2021, from 12pm Christmas Eve until 12pm Christmas Day in even numbered years and from 12pm Christmas Day to 12pm Boxing Day in odd numbered years;
7.7.At other times as agreed between the parents.
Notwithstanding anything else where contained in these orders to the contrary, X spend time with the mother as follows:
8.1.Upon X commencing school and commencing in the Term 2 school holidays of X’s first year of school, for one half of Term 1, 2 and 3 NSW school holiday periods being the first half in odd numbered years and the second half in even numbered years;
8.2.Upon X commencing school, for Term 4 NSW school holiday periods each alternate week such time to commence the first week in odd numbered years and the second week in even numbered years and for the purposes of this order, such time to be for 7 consecutive nights commencing at 5pm and concluding at 5pm;
8.3.On the weekend that falls on Mother’s Day, in 2020 from 9am to 5pm and from 2021 onwards, from 5pm on the Saturday preceding Mother’s Day to 6pm Mother’s Day;
8.4.On X or the mother’s birthday, if during the week from after school or if a non school day from 3pm to 5pm and if on the weekend from 10am to 2pm;
8.5.Provided such time does not fall pursuant to order 8.1, during the Catholic Easter period, commencing in 2023 from 6pm Holy Thursday to 6pm Easter Saturday in odd numbered years and from 6pm Easter Saturday to 6pm Easter Monday in even numbered years;
8.6.Commencing in 2021, from 12pm Christmas Eve until 12pm Christmas Day in odd numbered years and from 12pm Christmas Day to 12pm Boxing day in even numbered years;
8.7.At other times as agreed between the parents.
For the purposes of School Holiday periods:
9.1.The school holidays are to commence at 5pm on the last day that X is required to attend school;
9.2.The school holidays are to conclude at 5pm on the day before X is required to recommence school;
9.3.For Term 1, 2 and 3 school holidays, changeover shall occur on the mid-point day of the particular holiday period at 5pm (usually a Saturday);
9.4.For Term 4 school holidays, changeover shall occur at 5pm.
Changeover
10. For the purpose of these orders, the parent who is due to commence time with X pursuant to these orders shall collect X from school if time commences from school otherwise from the other parent’s place of residence. For the purposes of changeover, such can take place by the parent or their nominee known to the child.
Telephone communication
11. As from 1 July 2021, the father be at liberty to telephone or video call (either by skype or facetime) X when he is not in his care each Tuesday and Thursday between 6.30pm and 7pm and for the purpose of this order, the father shall call the mother and the mother shall facilitate such communication.
12. As from 1 July 2021, the mother be at liberty to telephone or video call (either by skype or facetime) X when he is not in her care each Tuesday and Thursday between 6.30pm and 7pm and for the purpose of this order, the mother shall call the father and the father shall facilitate such communication.
International travel
13. As from 1 July 2022, each party be entitled to travel overseas with X upon provision to the other parent of:
13.1.At least 28 days written notice of their intention to travel;
13.2.Full details of the itinerary evidencing outbound and return flights and accommodation;
13.3.Full copy of itinerary;
13.4.Full copy of X’s contact details whilst overseas;
On the condition that either the mother or father (as the case may be) accompanies X, that such travel is for no longer than a period of 21 days and that such travel does not exceed more than once per year.
14. The parties shall do all acts and things to ensure that X always has a valid Australian passport and for the purposes of issuing the passport, each party will pay one half of the said costs.
15. X’s passport shall be held in the mother’s possession.
16. To give effect to order 12, the mother shall provide to the father X’s passport within 7 days from him requesting the said passport and after the father has finalised his travel with X, he shall forthwith return the passport to the mother.
Ancillary orders
17. That within 28 days of the mother’s compliance with order 3, both parents will enrol in Uniting’s “Keeping contact” program and will do all things necessary to complete the program as soon as reasonably practicable and inform the other parent in writing within 7 days of enrolment in same.
18. That within 28 days of the mother’s compliance with order 3, both parents will enrol in the “Keeping kids in mind” course and will do all things necessary to complete the course as soon as reasonably practicable and inform the other parent in writing within 7 days of completion of same.
19. Each party notify the other not more than 24 hours after any change to their address and/or landline and/or mobile telephone number.
20. Each party will respond as soon as reasonably practicable to the other party’s communication concerning X.
21. Each party shall encourage and support X to participate in extra-curricular activities and each party shall be at liberty to attend same.
22. Each party be at liberty to attend any school events including but not limited to assemblies, parent/teacher interviews and school carnivals.
23. The father and mother shall provide to the other any medication prescribed for X whilst he is in their care, along with information as to how that medication is to be taken and each party is to ensure that X takes his medication as prescribed.
24. Each party notify the other as soon as possible, in any event, within 4 hours, of any serious injury or illness suffered by X whilst he is with that party.
25. The parties will ensure they speak courteously and respectfully to one another without the use of belittling or derogatory language.
26. The parties are restrained from denigrating one another or a member of the other parent’s family in the presence or hearing of X and will take reasonable steps to ensure that other people do not denigrate the other parent or their family in the presence or hearing of X.
27. Within 28 days the parents will arrange for the use of a communication app designed for use by separated parents and will maintain use of such app as their primary source of communication except in case of emergency whereby the parents will communicate via telephone and the parents be jointly responsible for the cost of the communication app.
Independent children’s lawyer’s costs
28. That within 28 days of the date of these orders, the applicant shall pay to Legal Aid NSW the sum of $4,078.00, being one half of the costs of the independent legal representation for X.
29. That within 28 days of the date of these orders, the respondent shall pay to Legal Aid NSW the sum of $4,078.00, being one half of the costs of the independent legal representation for X.
Notation A: Both parents will use their best endeavours to ensure that the father’s alternate weekend time with X coincides with the weekend that the father has his son A in his care.
IT IS NOTED that publication of this judgment under the pseudonym Coolen & Coolen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4209 of 2018
| MR COOLEN |
Applicant
And
| MS COOLEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This final parenting hearing relates to the child X born … 2018 (“the child”).
The father is aged 45 years. The mother is aged 40 years.
The parties commenced cohabitation in about … 2013. They married in … 2016.
The parties finally separated on about 30 June 2018 when the father left the former matrimonial home at Suburb L. He moved to Suburb K.
Since about October 2018 the mother and the child have been residing in Town B with the maternal grandparents.
On 1 February 2019 this Court made interim orders, inter alia, that the mother and the child X born … 2018 be permitted to remain in Town B pending the final hearing.
On 11-13 June 2019 the Court held an expedited final parenting hearing. At that hearing the Court heard, inter alia, the father’s proposal that the mother cause the child’s residence to be relocated back to Sydney, which proposal was opposed by the mother.
Proposals
The father’s Amended Initiating Application filed 31 May 2019 proposed final parenting orders, inter alia, that the child live with the mother; that the mother cause the child’s residence to be relocated back to Sydney, where the father lives; that the child spend time with the father on a graduating basis (as set out in his aforesaid application); together with other proposed parenting related orders.
The mother’s Further Amended Response filed 4 June 2019 proposed final parenting orders, inter alia, that she be permitted to permanently relocate the child’s residence to Town B; that the child live with the mother; that the child spent time with the father on a graduating basis (as set out in her aforesaid Response).
In the alternative, the mother proposed certain final parenting orders, should she be required to relocate to Sydney with the child; again, that the child live with the mother, and that the child spend time with the father on a certain graduating basis, together with other proposed parenting related orders.
The Independent children’s lawyer (ICL) supports the father’s proposed orders that the mother cause the child’s residence to be relocated back to Sydney. The ICL’s proposed final parenting orders are set out in her minute of order proposed, and which the court has marked exhibit L. Such proposed final parenting orders, inter alia, provide for the child to live with the mother; that the mother be restrained from changing the child’s primary place of residence to outside the Sydney Metropolitan area being more than a 25 km radius of Suburb K; and that the child spend time with the father on a certain graduating basis as set out in exhibit L.
On 3 September 2019, the Court had the matter listed for mention, in light of correspondence sent to the court by the parties and ICL in relation to exhibit L. The relevant correspondence is:
• letter to the court from the mothers solicitors date 3 July 2019
• letter to the court from the father’s solicitors dated 4 July 2019
• letter from the ICL to the parties dated 2 September 2019
(Here set out the contents of this letter)
• letter to the court from the mothers solicitors dated 3 September 2019
(here set out the contents of this letter)
• letter to the court from the father’s solicitors dated 6 September 2019.
At the above mention, the ICL, inter alia, indicated that she was content, by reference to her proposed Order 3 in exhibit L, with a 30 km driving distance restriction of the mother’s new address in Sydney from the father’s residence in Suburb K.
Material relied upon
The mother relied upon the following documents:
a)Response to Amended Initiating Application filed 5 April 2019;
b)Financial Statement of Ms Coolen filed 1 April 2019;
c)Further Amended Response to Initiating Application filed 1 April 2019;
d)Affidavit of Ms Coolen filed 31 May 2019;
e)Affidavit of Ms C filed 31 May 2019;
f)Affidavit of Dr D filed 31 May 2019;
g)Affidavit of Dr E filed 12 November 2018.
The father relied upon the following documents:
a)Amended Initiating application filed 31 May 2019;
b)Affidavit of the Applicant filed 31 May 2019;
c)Affidavit of Mr F filed 31 May 2019;
d)Financial statement of the Applicant filed 1 March 2019;
e)Financial Statement of the Respondent filed 3 April 2019.
The following exhibits were relied upon:
a)Exhibit A: Trial Plan of parties and Independent Children’s Lawyer;
b)Exhibit B: Email regarding child support dated 12 July 2018;
c)Exhibit C: Email dated 2 February 2019;
d)Exhibit D: Family Report
e)Exhibit E: Applicant’s Pay Slip from 27 May 2019 to 9 June 2019;
f)Exhibit F: Consent Orders;
g)Exhibit G: M Pty Ltd letter to the Court from the Respondent’s employer;
h)Exhibit H: Psychologist’s records;
i)Exhibit I: Minute of Order from the Applicant;
j)Exhibit J: Subpoena material produced by ‘N Psychology’
k)Exhibit K:
l)Exhibit L: ICL’s proposed Minute of Order
m)Exhibit M: correspondence, inter alia, between parties and ICL
n)Letters as to costs.
Evidence
Throughout these reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is aged 45 years. The mother is aged 40 years.
The parties commenced cohabitation in about … 2013. They married in … 2016.
The parties finally separated on about 30 June 2018 when the father left the former matrimonial home at Suburb L.
The mother grew up in Suburb G. The parties resided in Sydney for the duration of their relationship.
The father has a son from a previous relationship, A, who is five years of age. That child lives with his mother in Suburb O and spends time with the father for five nights in each fortnight.
Following the child’s birth and 30 June 2018 when the father left the Suburb L property, he was a daily part of the child’s life and was directly involved in his day-to-day care and routine. On many occasions during the relationship, the father was responsible for caring for the child and A on his own.
The mother’s parents reside at Town B.
In July 2018, within one week of separation, the maternal grandmother moved into the Suburb L property. The maternal grandfather moved in a short time later.
Between the date of separation and about mid October 2018, the father spent some time with the child.
In early August 2018 the father put the mother on notice of his position to the child not to be relocated outside of Sydney.
In early August 2018, the mother sent a text message to the father stating words to the effect, “X will be ready (if not sleeping) in exchange for the whipper snipper.” The father attended the Suburb L property with his friend. The maternal grandmother handed the child to the father in the pram after the father had handed the whipper snipper to the maternal grandfather.
In about mid October 2018 the mother and child moved to Town B to live with the maternal grandparents. The mother and child have lived there to date.
Between about mid October 2018 and early February 2019, the child spend time with the father during the daytime on weekends; one week he would spend such time with the child in Town B and in the other week he would spend such time with the child in Sydney.
Since the court’s interim orders of 1 February 2019, the child has spent time with the father in accordance with those orders, being daytime time each weekend, one week in Town B and the other week in Sydney.
During certain weekends in April 2019 and the father was unable to spend time with the child in Town B because of his then parlous financial position.
On the occasions where the child spent time with the father in Sydney, the father observed the mother attend all changeovers alone, apart from one occasion when the father observed the maternal grandmother in the mother’s car. Since 31 October 2018 each of the Sydney changeovers have occurred at the father’s residence in Suburb K. The usual routine is that the mother opens the latch to the front gate of the father’s home and walks into his enclosed private courtyard at the front of his house. The mother always hands the child over to the father personally from her arms to his.
On the occasions that the father collected dropped off the child in Town B, the mother has met him at the front door of the maternal grandparents home. Usually the mother has attended the front door alone to facilitate changeover.
On all changeovers, the father has observed that the mother has stood in close proximity to him and engaged in conversation with him. On numerous occasions the father has given the child a kiss while he was in the mothers arms.
The trip from the father’s residence in Suburb K to the maternal grandparents home in Town B is about 370 km and/or a four hour non-stop drive or five hour stop drive.
The father has made this trip in about 14 occasions since October 2018. The father has found the travel distance onerous and exhausting. The trip usually takes him five hours rather than four hours. It costs the father about $80 to travel to and from Town B return as far as diesel costs for his car half concerned. The father has been required to arrange and pay for overnight accommodation in Town B each alternate weekend. The cost of one night’s accommodation is usually between $120 and $150 per night depending on the season. The father does not have any family or friends that live in Town B.
The father has extended family in Sydney.
Presently the alternate weekend time that A spends with the father coincides with the alternative weekend time the child spends with the father in Sydney. This provides A and the child with an opportunity to spend time with one another.
The father commenced full-time employment as a customer service officer with a particular company in … 2018. He receives $110,000 per annum plus superannuation. His usual work days are Monday to Friday, usually between 8:30 AM to 5:30 PM.
The father pays child support for both A and X.
The father’s residence at Suburb K has two bedrooms, two bathrooms, a courtyard, a swimming pool in the complex, garage and secure balcony.
The father’s researches indicate that there are some rental properties listed in Suburb P and Suburb H with rental on a weekly basis ranging between $395 and $580 per week, with a median rental of about $520 per week. He has searched certain available rental properties in the Suburb L area with a median rental of about $560 per week. Each of Suburb P, Suburb H and Suburb L within 25 km of the father’s home in Suburb K.
The father gave oral evidence. The court does not propose to set out the entirety of his oral evidence.
It was put to the father that the mother had stated that she could not cope emotionally if she had to return to Sydney. The father stated that the mother has very close friends from school who have children. He stated that the mother had a friendship with A’s mother.
The father agreed that he had not spent one overnight with the child.
The father stated that he could not move to Town B. In this context, the father referred to the child A, stating that this child has sports and commitments in Sydney. He also stated that his employment requires him to be based in Sydney.
The father did not agree that his relationship with the mother would deteriorate if she came to Sydney.
The father had Facetime communication with the child between late November 2018 and February 2019 twice per week.
The father confirmed that he spends time with the child A five nights in each fortnight, together with, inter alia, half school holidays.
The father has been working five days per week in his new employment … 2018. He works as a customer service officer, working from home however he may travel around the Sydney Metropolitan area for his work.
The father stated he could not afford to travel to Town B each fortnight in the short or long term.
The father stated he has a very close bond with the child.
In his case in reply, the husband tendered in evidence his payslip with his employer for the pay period 27 May 2019 to 9 June 2019; a fortnightly period with gross earnings of $4527 (see exhibit E). He has fortnightly deductions of, inter alia, child support, $643, PAYG tax of $1266. The $643 relates to the child, $398 per fortnight, and the child A, $244 per fortnight.
In … 2019 the child commenced attendance at a daycare centre in Town B. He attends two days per week.
The mother has always been the child’s primary carer since birth.
The maternal grandparents give the mother substantial support with the day-to-day care of the child during hours that the mother works and when the child is not asleep or at daycare.
The maternal grandparents help care for the child during the mothers working hours when the child is unwell and unable to attend daycare. The maternal grandmother, on several occasions, has also travelled to Sydney with the mother for changeovers as support in the car.
The child has a close relationship with the maternal grandparents.
On average the child spends about 12 hours per week in the care of the maternal grandparents.
The maternal grandparents live in a single story three-bedroom home where both the child and the mother have their own bedrooms.
The mother lives with the child with the maternal grandparents rent-free. The mother contributes to household duties. The maternal grandmother cooks most of the nightly meals for the mother.
In … 2018 the mother returned to part-time employment as a professional with particular company after taking a three month period of full-time maternity leave. The mother continues to work from home the equivalent of two full-time days each week, with her hours spread over four days. She works from 9 AM to 11 AM and from 1 PM to 3 PM each Monday, Tuesday, Thursday and Friday.
The mother is present work situation is that her employer can only offer her the equivalent of two days work each week, which equates to an annual salary of about $52,800, before tax. The mother asserts that she does not feel that she would be able to sustain an increase in her work hours at the present time due to the increased pressure this would bring upon her. The mother asserts that if her work hours increased, and she asserts that it would be helpful to be earning more money, she would need to increase the child’s time with the maternal grandparents and/or at daycare.
Since moving to Town B the mother has established some friendships and a support network outside the home.
After the child’s birth in … 2018, the mother started experiencing a decline in her mental health generally. In particular, she was continuously feeling depressed and anxious and had a general sense of being overwhelmed which was unusual and out of character for her.
In about March 2018, she started to see a clinical psychologist, Dr D.
In about mid June 2018 the mother was diagnosed with postnatal depression by a GP, Dr E, and was given a mental health plan. The mother was working at the time was also looking after the child. At this time the child was constantly unsettled throughout the night, waking every 1 to 2 hours.
The mother asserts that since moving Town B, her general mental, emotional and physical health has improved significantly, largely due to the love and support that she has received from the maternal grandparents.
In the time that the mother has been living in Town B, she has had two consultations with Dr D. During this time, the mother asserts she has not felt the same level of need to see her. The mother’s last session with Dr D was on 11 May 2019 by telephone.
The mother asserts that generally speaking, she feels that her mental health and well-being presently is strong. She asserts that she can cope with work, being a mother to a 16-month-old baby, travelling to Sydney every second weekend and performing household duties such as cooking, cleaning and washing. For her physical well-being, she walked several times a week for exercise. She asserts that as the child now only wakes once a night, she has been able to return to more regular and solid sleeping patterns. She asserts that having support of the maternal grandparents, especially the maternal grandmother, has allowed her to rest should she need to.
The mother asserts that if the child and herself were to return to Sydney, the child will have to attend daycare 4 days per week because she would lose the ongoing daily support of the maternal grandparents and there is no one else around to assist her otherwise.
The mother asserts that if she had to move to Sydney, she believes that she would feel isolated, emotional, unsupported and unhappy. She asserts that this would not be in the child’s best interest.
The mother asserts that she could not afford to buy a house in Sydney so she would have to rent a place to live which she has not done since she was 21 years.
The mother asserts that based on her current salary, she has a borrowing capacity of about $250,000. The mother asserts that having a mortgage of about $250,000 would be financially sustainable for her.
The mother asserts that if she had to live in Sydney, her preference would be to rent a property in the Suburb Q area. She asserts that she would need a three-bedroom place to accommodate the maternal grandparents when they came down to visit and support the mother and the child. She asserts that rent in the Suburb Q area for a three-bedroom townhouse or house starts from about $550 per week.
The mother asserts that she does know people in Sydney and they live all across the city.
The mother asserts that the father continues to intimidate her which is made co-parenting extremely difficult and stressful. (See paragraph 87)
During the course of the proceedings, the parties settled the property proceedings; see exhibit F. It was common ground between the parties that the mother would be left with about $300,000 following her receipt of settlement funds and payment of certain liabilities.
The mother gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The mother stated that she had decided to move to Town B by the end of September 2018.
The mother’s attention was drawn to paragraph 97 of the family report wherein the family report writer had stated that ideally the child would spend regular, frequent time with the father in order to provide opportunities for him to establish and maintain a meaningful relationship with him. It was suggested to the mother that her move with the child to Town B had made the spending of such time between the child and the father difficult, to which the mother agreed.
The mother accepted, by reference to the father’s affidavit, that he was experiencing difficulties with journeys between Sydney and Town B, both the travel aspect and financially. She stated that she did not foresee such difficulties on moving to Town B from Sydney.
The mother stated that she absolutely acknowledges that it is in the best interests of the child have a relationship with the father.
The mother confirmed that she had sent an email to her treating psychologist, Dr D, on 5 February 2019, referring to the courts interim parenting orders of early February 2019. She had stated to Dr D, inter alia, “I still have to come to Sydney every second weekend to provide Mr Coolen with access to X. And Mr Coolen comes up here on the alternative. It can be challenging with the travel, but its short-term pain, for a longer term lifestyle and new start. That’s the way I’m looking at it.”
The mother stated that on 11 May 2019 she had a telephone conversation with her psychologist, inter alia, about the preparation of her court case.
The mother confirmed that she had told her psychologist Dr D that she had bonded with the mother of A, Ms R, and that she had stayed with Ms R once.
The mother stated that in hindsight it was unfair to have stated in paragraph 109 of her trial affidavit that the father had not contributed towards daycare costs when she had not asked the father to contribute towards such costs.
The mother’s attention was drawn to paragraph 93 of the family report wherein it was stated, inter alia, that in the assessment the mother did not seem to appreciate the difficulties, created by distance, in facilitating a meaningful relationship between the child and the father. The mother stated that she can accept that there are difficulties.
The mother stated that her happiness is primary carer of the child at such a young age is paramount. She stated that her happiness is assured by being with her parents in Town B.
The mother accepted that she is strong, independent and capable. The mother confirmed that she had lived alone previously.
The mother confirmed that in … 2016 the mother was offered full-time employment with M Pty Ltd, and that she worked full-time with that company in 2016. The mother agreed that such employment had not been terminated. The mother confirmed that she is working two days per week now with that company. The mother confirmed that she was an experienced professional. The mother confirmed that she had made no other enquiries as to employment opportunities in Sydney. She asserted that she did not have the capacity to work three days per week now. She stated that she will increase her working hours in a few years when the child goes to school.
(The Court observes that exhibit G, being, inter alia, copy correspondence passing between the mother and her employer, contains a copy iPhone message from the mother to her employer dated … 2018 in which the mother refers to working the equivalent of two days per week (16 hours), and concluding her message by stating, “As and when I transition to 3 days we can re-tweak the schedule given the hours per week would increase.”)
The mother agreed that if she was to live (rent) in Sydney with the child, and without resorting to her capital, she could either (seek to) increase her working hours and have the child attend daycare for more than two days per week, or not increase her present working hours and draw on her capital.
The mother stated that when she brings the child down to Sydney to spend time with the father, she stays at the Hotel in Suburb H and which costs $120 a night. She spends some $60 for petrol for the return trip. She stated that it is costing her $200 per fortnight to travel down to Sydney. If she was to move to Sydney she would save $100 per week.
The mother stated that she would have to purchase a new motor vehicle if she was to move to Sydney because she was presently using her mother’s car. If she was renting premises she would need, inter alia, $2000 for a rental bond.
Evidence of mother’s GP, Dr E
Dr E affirmed an affidavit on 12 November 2018.
Her affidavit stated that the mother had been her patient from 6 June 2018 to date.
Her report dated 27 October 2018, attached to her affidavit, states inter alia that when she met the mother for the first time on 6 June 2018 she was struggling after the birth of her son; she was assessed as having postnatal depression. The doctor did not have any concerns, at any time, about the mother’s ability to care for the child, but she felt the mother was in need of more practical support at this time.
The doctor made a referral to Tressilian on 19 June 2018, which was not taken up by the mother, as she was still unable to get the practical support she needed. Medication was not prescribed for the mother.
The doctor, together with another doctor who saw the child for vaccinations and a referral, both felt the child had been well cared for and appeared happy despite the marital troubles.
The doctor stated that since the mother’s parents came to stay, the mother has been able to sleep adequately and has become mentally well, she has continued to work from home and care for the child and she was making positive decisions regarding her and the child’s future.
The doctor’s most recent consultation with the mother on 19 October 2018 was very positive regarding her own now normal mental state.
The doctor states that the mother’s mental health had improved significantly when reassessed on 19 October 2018 with no evidence of depression noted on formal testing using the Edinburgh Post Natal Depression scale.
The doctor states that she is very concerned about the mother’s well-being (both physically and mentally) and hence the child’s well-being, if the mother was forced to live in Sydney and in close proximity to the father without her family (parents) and friends nearby. In this context, the doctor stated, “This situation has been trialed, for a better word, and has not been healthy for (the mother).”
The doctor stated that the mother is a very able, independent and capable woman.
The progress notes of the doctor for the mother were attached to the doctor’s affidavit.
The progress notes for 6 June 2018, inter alia, refer to the mother being sleep deprived, expressing mood swings with increased temper and anxiety. The notes refer to the mother’s depression.
The progress notes for 7 June 2019 referred to the mothers need to prioritise her sleep.
The progress notes for 6 July 2018 inter alia state that the maternal grandmother was down to help the mother sleep, the mother had slipped seven hours the previous night, with the mother feeling more alert and looking more interactive.
The progress notes for 19 October 2018 stated inter alia that the mother is feeling much better, is well supported by her psychologist, and is now not depressed. The mother was still working from home, with the house sale just having been settled.
Dr E gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The doctor was cross-examined in relation to that part of her letter of 27 October 2018 (see above), such letter being addressed to the mother’s solicitors, wherein she stated that the situation of the mother living in Sydney, in close proximity to the father, without the maternal grandparents and friends nearby, had been “trialed” and has not been healthy for the mother. It was suggested to the doctor that in circumstances where the maternal grandmother had lived with the mother in Sydney between July and October 2018, (separation having occurred at the end of June 2018 or early July 2018) no such trial had taken place. The doctor responded by stating, inter alia, that the wording of her written report in this context was not perfect, and that there may have been days before the maternal grandmother came down to Sydney when the mother was alone.
The doctor agreed that she had written her letter of 27 October 2018 having been asked to provide it by the mother’s solicitors. She agreed that she was giving evidence in support of the mother’s case.
The doctor agreed that she had not consulted with the mother since her letter of 27 October 2018.
The doctor confirmed that she had not consulted with the mother at all between 6 July 2018 and 19 October 2018.
Evidence of mother’s psychologist Dr D
Dr D made an affidavit sworn 29 May 2019 and gave oral evidence.
Dr D stated in her affidavit that the mother had been her patient from 21 March 2018 to date.
She stated that she had been instructed by the mother’s solicitors to prepare a brief report in relation to her treatment of the mother.
She annexed her report to her affidavit and which was dated 27 May 2019.
The report stated that since 5 November 2018 the psychologist had treated the mother on 6 March 2019 and 11 May 2019 (sessions were conducted via telephone).
The psychologist stated that she had made no explicit diagnoses in her report to the mother’s GP dated 19 September 2018 or since her legal report from 5 November 2018. She stated that since the date of her last report there were no reported symptoms of anxiety or depression and none observed in session. The mother reported increased positive mood overall in this had also been observed in session.
The psychologist stated that given that the mother had consistent family support and strong social networks in Town B that she has not needed any counselling locally. She stated that at this stage the mother appears to be coping well and checks in with a psychologist for maintenance therapy, to consolidate gains already made and for extra support during the legal proceedings.
The psychologist stated, inter alia, that in her clinical opinion it was highly likely that the mothers parenting capacity would be adversely affected if she returned to live in Sydney. The relocation would leave her with no extended family support. She stated that a return to Sydney would likely put the mother under considerable financial strain, and she may need to return to work full-time which would impact her capacity to be as available for the child. She stated that given that the mother was the child’s primary carer it was essential that the mother feels safe and supported as possible in order to positively impact the child’s growth and development by way of building a secure attachment style. She stated that the mother reported that since residing in Town B and living separately from the father, her emotional health had improved significantly, for example, the mother reported that her life was more stable and she felt her personal safety was assured while she was living in close proximity to her parents.
The psychologist gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The psychologist was cross-examined by the father’s counsel.
The psychologist confirmed that the mother had first presented for psychological therapy on 21 March 2018 for couple’s counselling. After two sessions, the psychologist had referred the parties to another psychologist for couples counselling and the psychologist continued to see the mother as an individual client.
The psychologist stated that the psychological strategies provided to the mother in treatment was relationship coaching, parental support in the postnatal period, and mindfulness practices.
The psychologist confirmed that when she saw the mother together with the child, in session, she felt that the mother was meeting the child’s needs with warmth and sensitivity.
The psychologist confirmed that she had written a report to the mother’s solicitors on 5 November 2018 stating, inter alia that the mother had reported no history of anxiety or depression, and that she observed the mother to be a very organised and capable person who was struggling to cope under escalating relationship stress.
The psychologist confirmed that she had observed a positive primary-care relationship between the mother and the child. She confirmed that she did not have any concerns about the mother’s ability to care for the child.
The psychologist confirmed her view that the mother was a very able, independent and capable woman; the mother was a strong independent lady doing a good job as a parent to the child.
The psychologist confirmed that in her report of 5 November 2018 she had stated that she had made no explicit diagnoses in her report to the mother’s GP dated 19 September 2018, and further she had stated that in her client notes from 31 March 2018, it was observed that the mother was likely experiencing reactive anxiety and depression from being in a high conflict/abusive relationship during the postnatal period. She confirmed that she had formed that view just based on the mother’s self-report in terms of the high conflict abusive relationship aspect.
The psychologist stated that her knowledge no antidepressants were prescribed for the mother.
The psychologist confirmed that in the period from June 2018 to October 2018 there were some significant changes in life for the mother; the parties separated, the mother was sleeping much better because the baby was sleeping much better, the maternal grandmother was down from Town B to help the mother, and things seem to have settled down significantly in the mother’s home.
The psychologist confirmed that from March to October 2018, the mother coped with serious sleep deprivation, with suffering reactive depression, and suffering difficult marital circumstances. She confirmed that despite those difficulties reported by the mother she looked after the child very well.
The psychologist stated that based on the mother’s report and her clinical observations, should the mother be required to return to Sydney with the child it would be extremely challenging for the mother being without her parents support and due to the financial differences between Sydney and regional area.
The psychologist agreed that the mother would obtain respite should the maternal grandparents provide assistance to the mother in the care of the child (whether they visit the mother in Sydney or the mother visit them in Town B), and should the father consistently care for the child three days in the week, as proposed by him. She agreed that day care facilities available in Sydney would be another source of support and assistance to the mother. She agreed that the child’s present sleep from 7:30 PM to 6:30 AM in the morning was a significant improvement compared to what the mother was experiencing in the first half of 2018, and was a major beneficial change for parents (“more sleep is very beneficial”). She confirmed that the mother was a woman who had experience living independently.
The psychologist confirmed that at this point in time there was no reason to doubt that the child has a secure attachment to the mother. The psychologist agreed that given that the child’s attachment to the mother was able to be formed including during a period where the mother was experiencing or reporting significant stressors between March and June 2018, there was good reason to think that there was a low risk that the mother would, or the child would have a poorer form of attachment to the mother if the mother was required to move to Sydney.
The psychologist confirmed that she had a therapeutic relationship with the mother, built on trust between herself and the mother. The environment was less about challenging the veracity of accounts (provided by the mother) but more dealing with treating presenting symptoms and presenting circumstances.
The psychologist confirmed that from March 2018 until October 2018 she had had about six sessions with the mother, including two telephone sessions.
The psychologist attention was drawn to an email from the mother to her dated 2 February 2019, in which the mother referred to the interim orders of the court of February 2019 and had stated, inter alia, that, “It can be challenging with the travel, but its short-term pain for a longer term lifestyle and new start. That’s the way I’m looking at it.”
There was the following exchange between counsel for the father and the psychologist:
All right. So I will just get the exchange. So this was on 14 September 2018. We have an email from Ms Coolen:
I hope you’re well. Lots happening since I last saw you. Mr Coolen’s taking me to court over parenting X. I wanted to understand this, if it’s okay for you to provide a statement to include in my affidavit response, as Mr Coolen has said he has concerns about my behaviour in front of X. I’m not sure if professionally this is something you can do due to confidentiality, but just thought I would ask.
And you responded:
Thanks for your email. I’ve been holding you in mind and wondering how you’re getting on. I’m sorry to hear Mr Coolen’s taking you to court. While I would have absolutely no hesitation in stating that X is safe with you, psychologists don’t provide statements for legal proceedings unless there’s a subpoena in place.
Do you remember that email exchange? Yes. What was the – can you remind me of the date?
Absolutely. So the – I’m just reading from it – so the email from Ms Coolen was 14 September 2018? Yes.
And the email from you was 15 September 2018? Yes.
Okay. And later you received a letter, I presume, from Ms Coolen’s lawyers asking for a report? Correct.
And that’s what made you change your mind? In November, yes.
And you did that because you wanted to support Ms Coolen in her application to remain in Town B? It was to support Ms Coolen in general, like I would support any client.
And that’s because that’s the nature of the relationship that you have with your clients, that is, to be supportive of them? Yes.
That's right. You don’t provide such reports in the sense of being wholly independent and objective. You’re providing those reports to support them in their endeavours with the court? Of course, to some extent, yes.
And in terms of your – going back to the email now of 2 February 2019, you said:
Thank you so much for your email. I love your words and for letting me know the good news. That’s fantastic. And it just shows that, even to the judges, it makes complete sense for X to remain in Town B. There’s a lot of driving for you to be doing, though.
So there you’re offering support to your client there with a – from her perspective, a successful result? I believe it was a statement of fact about what had occurred, and then validating what she’s experiencing.
All right. So you had in mind there, obviously, Ms Coolen’s state of mind – her wellbeing in saying “fantastic” to her? Correct. She’s my client, yes.
Yes. All right. And then you say:
What an incredible first year of parenting you’ve had. If you can survive that, I believe you can get through anything that lies ahead.
? Mmm.
So in part, of course, you’re being validating in ? Yep.
when you’re saying something like that? Yep.
But you genuinely believed it, didn’t you, that Ms Coolen was, by that stage, resilient? -I was acknowledging her resilience that I had observed in session and in how she had coped with events to date.
HIS HONOUR: Just pause there, please. Yes.
MR OTHEN: It’s just when I read your report, I don’t see any evidence from you that suggest resilience on the part of Ms Coolen. That’s right, isn’t it? I believe in the report I was answering the questions that were given to me.
Right. And you didn’t think it was important to tell the court that you felt that Ms Coolen was resilient? I don’t know what to say to that. I don’t – yes. I’m not sure what
Well, you were asked questions about whether it’s beneficial or not and, in fact, you went on to say it was essential for Ms Coolen to remain in Town B, and you gave some reasons for that, one of which related to her improved emotional wellbeing and not wishing to endanger that. Surely, it was highly relevant to tell his Honour that, contrary to how things had appeared to you earlier on, particularly in 2018, that Ms Coolen appeared to you resilient? If I’ve made an oversight there, I apologise. That wasn’t an intentional thing.
Well, can I suggest it simply reflects the fact that, in preparing that report, you were just trying to do the best for your client to reach her goals in this litigation? That’s definitely partially true. If you would like me to expand on my reasoning behind saying it would adversely affect her if she was to stay in Sydney, I’m happy to do that.
Right. But the difficulty is, if I asked you to do that, we know it would be through the prism of you wishing to help your client get the best possible result in these proceedings, wouldn’t it? It would be that I was holding the child in mind as well, as we always do when we are with a parent.
Right. Did you hold the child in mind when you said it was fantastic – fantastic for the child to be in Town B and the effect of its relationship upon his father? Did you have the child in mind then? I had the child in mind from the point of view of Ms Coolen expressed she felt safer in Town B.
HIS HONOUR: Sorry. The mother said what, sorry? The mother had expressed the view that she felt safer in Town B.
Thank you.
MR OTHEN: Now, we’ve discussed already that you are dependent on report from clients in these situations? Yes.
And it’s not really part of your role to challenge those reports to any great extent? You’re there to validate and support and deal with presenting issues? Correct. But I would also add I am there, holding in mind evidence-based research while doing clinical assessments, as well as holding a self-report by a client.
I see. So – but you accept, don’t you, that in relying on self-report, there are going to be – there are bound to be times when you’re not getting the full story? I’m sure.
HIS HONOUR: Sorry. You – I apologise. You accept, in relying on self-report – what?
MR OTHEN: That there will be times when you’re not getting the full story? It’s a possibility.
Because, for example, in terms of safety, the evidence is that, for the most part, handovers are proceeding well between the couple; that they’re happening face to face between the couple without intermediaries; and the father reports some positive interactions, particularly between him and the child in the presence of the mother.
So you accept, of course, don’t you, that it’s a matter for his Honour to assess whether there is a safety issue as between the mother and the father? Yes.
And, really, you’re reporting what it is Ms Coolen has said to you about her feelings? Correct. And while a client is under my care, I am doing a risk assessment of their personal safety as well.
Based on their reports to you? Yes. And the safety of the child. Yes.
Based on their reports to you? Correct.
That must be so, mustn’t it? Correct.
All right. And you would agree with me, wouldn’t you, that that is a – while a necessary part of what you do, it has its limitations as a result in terms of working out what’s really going on? Agreed.”
In re-examination, the psychologist stated that the kind of circumstances that might cause a rupture of the child’s attachment to a parent could be ongoing adult conflict that does not get resolved. She also stated that when the primary carer was not receiving emotional or financial practical assistance and they were not able to meet the child’s needs in a warm and sensitive and loving way, it may lead to insecure attachment.
The maternal grandmother
The maternal grandmother swore an affidavit.
The maternal grandmother is 69 years of age and the maternal grandfather is 68 years of age. They are very close to the mother and always have been. They reside at Town B.
The maternal grandmother refers to travelling to Sydney about every three months with the maternal grandfather during the parties relationship.
The maternal grandmother stayed with the mother in the parties former Suburb L property for less than a week in February 2018 to help the mother with the child. She also stayed with the mother for several days in March 2018 and again for several days in April 2018. The maternal grandparents also stayed for a couple of days around late June 2018 to attend the child’s christening. On all these occasions the mother had asked the maternal grandmother to come to stay with her in Sydney.
The maternal grandmother stayed full time with the mother and child in Sydney from July 2018 to October 2018.
The maternal grandmother states at all times she and the maternal grandfather have been very happy to be in a position to care for and support the mother, a commitment they made when they had children.
The maternal grandmother states that during the time of the mother and the child had resided with the maternal grandparents, she has observed the child’s progress to be excellent. She has noticed the mother’s general well-being to improved considerably since she moved Town B.
The maternal grandmother states that if the mother and child ultimately settle in Town B and stay there permanently, the maternal grandparents will continue to support them, including by travelling to Sydney to drop the child off to spend time with the father.
The maternal grandmother states that if the mother and child have to move back to Sydney, the maternal grandparents could “of course” still help out.
The maternal grandmother gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The maternal grandmother was asked what she would have done if the court had ordered that the mother and child remained in Sydney (at the interim stage of the proceedings). She stated that she would have stayed in Sydney for a short time until the mother was settled in (in Sydney).
The maternal grandmother confirmed that, since the courts interim orders of 1 February 2019, she had travelled to Sydney on several occasions.
The maternal grandmother was asked some questions in relation to the mother and child living in Sydney. She stated that in the event that the mother experienced a crisis or difficulty, she could come down to Sydney. She agreed that she could come down to Sydney from Town B reasonably frequently and visit the mother. She confirmed that the mother and the child were free to come to Town B and visit when they wanted.
The maternal grandmother stated that she does want to have a relationship with the child.
The maternal grandmother stated that she could come down to Sydney from Town B from time to time, depending on what she had on in Town B.
The family report
The family report writer was Ms J. She interviewed the parties on 5 March 2019.
The mother asserted the family report writer that she will feel more secure and happy when she is able to remain in Town B.
The father told the family report writer that at about the time of his separation from the mother was diagnosed with depression, saw his GP and was prescribed medication. He continues to take his medication. He saw a counsellor and also a trauma counsellor and he still consults the latter as required.
The mother told the family report writer that her mental health is generally better since she has moved Town B. She confirmed that she consulted a psychologist, Dr D soon after the child was born and was diagnosed with postnatal depression at the time. The mother stated that she and the father originally consulted this psychologist for couples counselling but that the psychologist recommended that the mother come alone.
The mother told the family report writer that she wants the child to have a relationship with the father but does not want this to be “to the detriment of our [X’s and her] life.”
The mother told the family report writer that she was seeking sole parental responsibility because she and the father are unable to communicate. (The Court interpolates at this point that the mother, in her Further Amended Response filed 31 May 2019, seeks equal shared parental responsibility for the child.)
The mother said that the father is very affectionate towards the child and that he has a large and supportive family.
The mother stated that the child attends daycare for two days per week between 9 AM and 3 PM and seems to love it there.
The family report writer observed that the child appeared happy and comfortable with the mother and maternal grandparents in the observation session.
The family report writer observed that the child was generally quieter in the observation with the father and demonstrated some monies in being away from the mother. The father demonstrated a calm demeanour and soothing manner, which was entirely appropriate under the circumstances. The father was gentle in his interactions with the child and tried to comfort him.
Under the heading “Evaluation”, the family report writer stated that the child appear to have a positive relationship with the mother and the maternal grandparents. She stated that the child’s relationship with the father, on observation, appeared more tenuous, in that the child did not really settle in the course of the time spent with the father. This seemed to accord with the father stated experience when he sees a child of the weekend, in that he said that the child is often somewhat distant and wary with him at first on Saturdays, but that, over the course of the weekend, he becomes more confident and open. The family report writer opined that, from her observations, the child feels most secure in his relationship with the mother.
The family report writer stated that at the child’s age, more frequent occasions of spending time would be ideal so that the child would be able to “hold in mind” the father. She stated that it was difficult to envisage how this would be practicable, given the distance between the parents current households. She stated that this may have implications for the child in the future, in that the absence of frequent time now may make it more difficult to implement arrangements whereby the child spend longer periods with the father when he is older.
The family report writer observed that the parenting relationship between the parties appeared poor. The father expressed some lack of confidence in the mothers parenting capacity, whereas the mother expressed some concern that the father had changed so that she could no longer trust him. On the other hand, both acknowledged the other’s strengths as a parent when they were in a relationship.
The family report writer observed that both parents demonstrated great care and concern for the child.
The family report writer noted that in the assessment, the mother was adamant that she wished the child have a relationship with the father, however, did not seem to appreciate the difficulties, created by distance, in facilitating a meaningful relationship between the child and the father. She stated that for a parent play a major role in the child’s life, it may be seen as important that they are involved in decisions pertaining to the child as well as participation in their day-to-day activities. The father’s participation will be difficult in the context of the current distance between the parents and the mother did not seem to appreciate the extent of this.
The family report writer stated that if the mother’s mental health were to be significantly negatively impacted if she were to return to Sydney, it would consequently have a negative impact on the child.
The family report writer stated that the physical distance between the parents homes precludes consideration of arrangements involving the child spending more frequent time with the father. She stated that ideally, the child spend regular, frequent time with the father in order to provide opportunities for him to establish and maintain a meaningful relationship with him, while maintaining a relationship with the mother which is reflective of his current closeness to her.
The family report writer stated that maintaining the current arrangements would also likely make progression to possible overnight time difficult, it is to occur in the context of a hotel, since there are more likely to be difficulties in maintaining consistency in the environment in a hotel room. If the child were to live with the mother in Sydney, it will enable him to have the opportunity to continue to develop and maintain a meaningful relationship with the father. If the child were to continue to live with the mother in Town B, there would be far less practical opportunity for this.
The family report writer stated that it may be that the potential benefits to the child of having such opportunity to build a meaningful relationship with the father needs to be weighed against the potential benefits to the child, including lifestyle factors and beneficial impact on the mother’s well-being, of living in Town B.
The family report writer stated that whilst overnight time can be especially important psychologically for infants, toddlers and young children, overnight time was not essential for a child to develop an attachment to a caregiver, as the most important thing required was the parents ability to sensitively attend and respond to the child, which can be demonstrated during daylight caregiving tasks. The progression for a young child to commence spending overnight time (with the parent who may do not live with) should always be based on the child’s readiness to do so. This is assessed with regard to the child’s capacity to cope with the separation from the parent with whom they live, and their ability to use the parent with whom they will spend time as a source of comfort. Any parenting arrangement must aim to minimise stress on the developing brain of the child.
The family report writer stated that it was noted that the child did not appear to be able to use the father for comfort and security in the way that he is the mother and this, rather than the absence of risk factors, may need to be taken into account when considering overnight time. However, overnight time could be considered as an option in the future. It would be recommended that, first of all, the child spend entire days with the father before an overnight stay on Saturday evening occurs.
The family report writer stated that it would be ideal were the child to be able to spend time with the father on three occasions per week, with gradually increasing time spent with him on the weekend so that the child is able to spend overnight time, after he is accustomed to spending an entire day with the father.
The family report writer stated that the possible use of a communication book or “app” could offer the parents a platform to communicate about the child, without necessarily meeting face-to-face, and the child would then be able to experience the support and interest of each parent in his activities and schooling. It was hence recommended by the family report writer that parental responsibility be shared.
The family report writer recommended that the child live with the mother, and that the issue of relocation be determined by the court. (See paragraph 96 and 97)
The family report writer gave oral evidence. The court does not propose to set out the entirety of her oral evidence.
The report writer stated that she was sure that the father had established a relationship with the child. She expressed a concern that, in relation to the current interim parenting regime, the ground was not being laid for a meaningful relationship between the child and the father in the future.
She stated that children do better if they have a meaningful relationship with both parents. In this context, she referred to a parent being involved in the life of the child rather than the child just seeing a parent and playing games.
She stated that in the early years of the child, the children are ripe for forming attachment relationships; the parent/child attachment is important. She stated that with the current interim parenting regime, the child may not form the sort of attachment that would presuppose that he sees the father as a source of comfort and security.
The family report writer stated that the best way to move forward would be for the child to regularly and frequently spend time with the father. She could not think of another way to achieve that, other than by the mother moving back to Sydney.
The family report writer stated that ideally, the parties would live in close proximity to each other, and the father would spend time with the child at least three times per week; it would be very reasonable that the father spend a couple of hours with the child on two weekdays, together with building up to a day on either the Saturday or Sunday. She stated that by the time the child was aged two years, he could be spending the full day with the father, together with from 3:30 PM to 5:30 PM on two occasions during the week.
The family report writer stated that there was no magic age, after the child turns two years, at which the child could begin to spend overnight time with the father. She stated that the child has to be able to understand spending just one night (with the father) and then seeing the mother. She stated that three years was a reasonably rough way of looking at this issue. It was a question of what the child was comfortable with in this context.
The family report writer stated that when the child begins to spend overnight time with the father, days on either side of the overnight stay should not be lengthy, which can be worked up. By the age of four years, for example, the child to be staying the entire weekend with the father, but it depended on how well the child was responding and how his relationship was going with his parents.
The family report writer stated that at three years of age, the child could begin to spend one overnight with the father and then proceed reasonably cautiously. For example, the child could spend one overnight with the father on one weekend, and the next weekend have one day time day with the father together with weekly time (not overnight) with him.
The family report writer stated that if the mother was to remain living in Town B with the child, then as the child becomes older, the child develops roots in the community. Children can resent travelling away and missing sport, and they form friendships in the local area. If they are to spend holiday time with the father and they cannot see their friends. Living at some distance away from the non-primary carer means spending less time with the parent.
The family report writer’s attention was drawn to paragraph 96 of the family report, in particular in relation to the mother’s mental health treatment post separation. The family report writer stated that the mother was likely to experience greater stress if she moved back to Sydney and that she would need the support of family and friends. A further support would be professional support.
The family report writer stated that the mother appeared to be managing her mental health. She appeared not to have mental health problems. She agreed it was important for the mother to be able to manage her mental health, if the mother had been diagnosed with depression.
The mother suggested to the family report writer that it was a concern that the mother had asserted that she doesn’t have a social group in Sydney. The family report writer stated that social networks were important in managing depression. It gave her confidence that the mother had been able to establish social networks in Town B.
The mother suggested to the family report writer that there may be a risk to the child if the mother could not cope in caring for the child on her own, was subjected to financial stress, with no family support. The family report writer stated that in those circumstances the mother’s capacity as a parent would be called into question. It was expected that parenting could be done without resident grandparents. (And see paragraph 96 of the family report).
The court accepts the evidence of the family report writer.
Legal principles
The Court refers to Foster J’s recitation of relevant legal principle in relation to parenting proceedings as set out in the decision of Knight & Knight [2016] FamCA 1085 as follows:
[134] Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
[135] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792 Kirby J said:
[144] ......a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[136] Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(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).
[137] In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
[138] Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. Sections 61DA(2) and (4) provide that this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.
[139] In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).
[140] The Full Court in Goode v Goode [2006] FamCAFC 1346; (2007) 36 FamLR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.
The Court also refers to Foster J’s recitation of relevant legal principle in relation to relocation cases in the aforesaid decision of Knight & Knight as follows:
[142] The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles [2007] FamCA 1230; (2008) Fam LR 275, (2007) FLC 93-343, Malcolm & Monroe [2011] FamCAFC 16, Sayer & Radcliffe and Anor [2012] FamCAFC 209) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.
[143] In Taylor v Barker [2007] Fam CA 1236; (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:
[53] ...... when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and KB & TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
[144] In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J heard an appeal as a single Judge pursuant to s 94AAA (3) of the Act. At [79] to [81] Boland J identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:
In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
The mother has successfully established a support network of friends in Town B. There is a significant prospect that, equally, she will be able to establish a support network of friends in Sydney. The mother acknowledges that she already has some friends in Sydney. The mother has lived previously in Sydney for most of her life.
The mother asserts that she will not cope financially living in Sydney. Whilst the Court recognises that the mother’s financial circumstances, both present and future, living in Town B, are probably less demanding than living in Sydney, the Court is not persuaded that the mother will not be able to cope financially living in Sydney.
It is common ground that she will have access to some $300,000 by reason of the property settlement effected between the parties during the course of these parenting proceedings on 13 June 2019. The mother’s trial affidavit was sworn on 31 May 2019 prior to this settlement.
Should the mother move back to Sydney and rent a property (noting that she presently lives rent-free with the maternal grandparents), she will incur a weekly rental, based on the father’s evidence of median rentals for two-bedroom rental properties in the Suburb P/Suburb H and Suburb L areas, of between $520 and $560 per week respectively. The mother’s evidence was that rent in the Suburb Q area for a three-bedroom townhouse or house starts from about $550 per week.
Based on the mother’s Financial Statement filed 29 March 2019, reflecting her weekly income before tax of $1,000, relating to her present work of two days per week, and factoring in weekly rental, her weekly expenditure will likely exceed her present weekly income.
The mother and her present employer, M Pty Ltd, reached a flexible part-time working arrangement in about … 2018, following the birth of the child, again, with the mother working effectively some two days per week or 16 hours per week.
The mother had been employed full-time with that company in … 2016, having previously worked as a contractor for that company and other businesses between … 2014 and … 2016. Whilst the mother asserts in her affidavit that her employer can only offer her the equivalent of two days work each week, her employer’s produced subpoenaed documents, within exhibit G, do not support such assertion. Those records, within exhibit G, suggest that the mother was working full-time with her employer from … 2016 and prior to the birth of the child. The mother had taken three months maternity leave, returning to work two days per week with that employer thereafter. The court observes that the mother’s email to the employer of … 2018 within exhibit G refers to the mother transitioning to 3 days work each week without a transition time being stated. Accordingly, it would appear that there may well be some prospect of the mother presently increasing her work hours with her current employer if she so wishes.
In any event, the mother confirmed that she was an experienced accounts director, was aged 40 years, and as yet she had made no enquiries as to employment opportunities in Sydney with other businesses.
It is apparent from the evidence in relation to the mother’s costs of staying in an apartment in Suburb H on her fortnightly trips to Sydney presently, together with petrol costs, that she would save some $100 per week in this context if she was living in Sydney.
The mother conceded that it would be open to her, on a move to Sydney, without resorting to her capital, to seek to increase her working hours and have the child attend daycare for more than two days each week.
The mother is receiving child support, assessed at $199 per week, in circumstances where the father earns some $110,000 per annum.
In summary, as to the mother’s financial position should she relocate the child’s residence to Sydney, and rent premises, she could remain working in employment at her current level and in these circumstances she will have access to her capital sum of $300,000. Without resorting to her capital, in these circumstances, the mother would probably need to increase her working hours and which would involve the child being placed in increased daycare. Should the mother wish to purchase real estate in Sydney to house herself and the child, again this would likely involve an increase in working hours and increased daycare.
(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
Should the child and mother remain living in Town B, the father will continue to have to meet accommodation and petrol costs in relation to the fortnightly travel to Town B. The court accepts that such continued expenditure by the father may well prevent him from otherwise expending such sums for the child’s, inter alia, education and extracurricular activities. The court accepts that there has already been two occasions when the father was unable to facilitate the accommodation and travel costs and therefore he was unable to attend at Town B to facilitate the child’s time with him.
The Court accepts that the fortnightly travel between Sydney and Town B is onerous and exhausting upon the father (a five hour trip), and detrimentally impacts upon the quality of his time spent with the child.
Should the child and mother return to live in Sydney, the above practical difficulties fall away.
Should the child and the mother remain living in Town B, as discussed above under the meaningful relationship primary consideration, there are significant impediments to this very young child establishing a meaningful relationship with the father in a timely fashion.
(f)The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
361. Subject to the Court’s discussion above under the need to protect primary consideration, each party would appear to have such capacities.
(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
The child is very young and progressing well. Each parent would appear devoted to the child.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parties have usually demonstrated satisfactory attitudes toward the child and to their responsibilities of parenthood.
Following the parties’ separation and prior to the court’s interim orders of October 2018, the mother, on occasions, was unduly restrictive of the child spending time with the father. For example, on about 11 August 2018, the mother would only allow the child to spend time with the father for one hour (from 10:30 AM to 11:30 AM). On this occasion, the mother had refused permission to the father to spend some extra time with the child and had told the father that she would call the police if the father did not immediately return the child.
The mother delayed informing the father of, inter alia, the child attending swimming lessons and sporting activities.
The father’s report to FACS relating to the child’s nappy rash was precipitous and unreasonable.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the Court’s view, should the mother and child remain living in Town B there is a significant prospect of there being further proceedings. Inter alia, the practicalities of the father travelling between Sydney and Town B would likely become unsustainable. And again, the Court refers to its discussion above under the meaningful relationship primary consideration in terms of significant impediments remaining as to the timely development of the child’s relationship with the father.
Discussion
Again, the parties have agreed to an order for equal shared parental responsibility.
Neither party seeks an order for equal time. In any event, it would not be in the best interests of the child to make an order for equal time, whether the child was to remain living in Town B or in Sydney; inter alia, the child is only one year of age, the mother has been the child’s primary carer since birth, and the child is presently developing his relationship with the father. Further, there is a significant degree of mistrust between the parties, and their parenting relationship is not sufficiently strong to adequately facilitate an equal time arrangement.
An equal time arrangement would not be reasonably practicable if the child and mother was to remain living in Town B with the father living in Sydney. Equal time would probably be reasonably practicable if the mother and child were living in Sydney within a reasonable distance of the father’s residence at Suburb K.
As to substantial and significant time, the following provisions of s65DAA of the Act are relevant:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
As to substantial and significant time and the child’s best interests, neither the ICL’s proposals, nor the parties’ proposals, embrace substantial and significant time being implemented at the present time. It will be in the child’s best interests to spend substantial and significant time with the father prospectively; the Court would regard the ICL’s revised proposed parenting orders (see exhibit L and the ICL’s letter of 2 September 2019 in exhibit M, but subject to certain discrete amendments to the ICL’s proposed revised orders 7.5, 8.5, 7.6, and 8.6, discussed below), as best meeting such time as well as being in the best interests of the child.
As to reasonable practicability, in the context of substantial and significant time, should the mother and child live in Sydney, there is no practical impediment to the implementation of the child spending substantial and significant time with the father prospectively, subject to the parties living within reasonable distance of each other. However, there are reasonable practicability impediments were the child and mother to remain living in Town B, as discussed previously and below.
It is convenient at this point to summarise the advantages and disadvantages for the child if the mother and child were to return to live in Sydney, to which there has been significant discussion above under s60CC of the Act.
As discussed above under the meaningful relationship primary consideration, were the child to move back to Sydney with the mother, practical impediments to the child spending increased time with the father would be removed; inter alia, the development of his meaningful relationship with the father could proceed and be facilitated in a timely and adequate fashion. Again, the court regards this advantage to the child as being particularly important.
Were the child to move back to Sydney with the mother, the practical difficulties experienced by the father (and the mother) in implementing the current parenting regime, involving travel between Sydney and Town B, would be removed, and this would benefit the child. The court would give significant weight to this advantage.
Again, the court recognises that the financial pressures upon the mother may well be less living in Town B with the child. Nevertheless, the court is satisfied that there is a significant prospect, if not a likelihood, that the mother would cope financially returning to live in Sydney with the child.
Should the mother remain living in Town B with the child, she would have the ready availability of support from her parents, and this would benefit the child. Nevertheless, the mother is intelligent, resilient, and is a competent mother, and there is a significant prospect, if not a likelihood, that at least the maternal grandmother will be able to travel to Sydney to be with the mother if any urgency arises and regularly visit the mother from time to time. Further, the mother and child will be welcome to spend time with the maternal grandparents in Town B should they so choose.
The court recognises that the mother may possibly enjoy a less stressful day-to-day life living in Town B, compared to living in Sydney, and there may be positive lifestyle aspects of living in Town B (a slower pace of life, less traffic, for example) that the mother would enjoy with indirect benefits to the child. Nevertheless, the mother has previously spent a considerable part of her life living in Sydney, albeit before the child was born. Again, the mother is intelligent, resilient and is a competent mother. There is a significant prospect that the maternal grandmother will be able to support the mother to transition back to living in Sydney with the child through visitations. The court is of the view that there is a significant prospect that the mother will be able to positively adjust to returning to live in Sydney with the child.
The mother has a readily available network of friends in Town B presently. That fact indirectly benefits the child. Nevertheless, the court is of the view that the mother should be able to similarly develop a network of friends in Sydney.
The mother will likely experience some stress, at least initially, if she moves back to Sydney and she may well need the support of family, friends, together with health professional support.
Generally, the court is of the view that, should the mother return to live in Sydney with the child, there is a significant prospect if not a likelihood that she will cope emotionally and not experience significant ongoing mental health difficulties.
Again, the court is satisfied that the mother will be able to competently and adequately parent the child should she be required to relocate child’s residence back to Sydney.
Should the mother and child remain living in Town B, the child, practically, will be readily able to spend time with the maternal grandparents. Nevertheless, and again, the child should be able to maintain his relationship with the maternal grandparents through the latter’s probable visits to Sydney from time to time, and the real prospect that the mother and child will visit the maternal grandparents in Town B.
Should the mother and child remain living in Town B, the child, practically, will have a reduced ability to spend regular time with the father’s extended family. Conversely, he will have an increased ability to spend such time with the father’s extended family were the mother and child to return to Sydney.
Weighing up the advantages and disadvantages to the child, the court is of the view that the advantages to the child if the mother and child return to live in Sydney outweigh the disadvantages of such return, and it will be in the best interests of the child that the mother cause the child’s residence to be located in Sydney.
Turning then to the parties’ parenting proposals in the event that the mother causes the child’s residence to be located in Sydney, the Court again would regard the ICL’s revised proposed parenting orders (see exhibit L and the ICL’s letter of 2 September 2019 in exhibit M, but subject to certain discrete amendments to the ICL’s proposed revised orders 7.5, 8.5, 7.6, and 8.6, discussed below), as being in the best interests of the child.
As to the mother’s proposed final parenting orders in this context, the court is of the view that those proposed orders would not facilitate the development and maintenance of a meaningful relationship between the child and the father in a timely fashion; for example, the mother only proposes one mid week occasion for time to be spent between the child and the father, for a certain period, (as opposed to 2 mid week such occasions proposed by the ICL and father, for a certain period), and further, the mother’s proposals would cease midweek time from … 2021.
In the event that the mother is ordered to relocate the child’s residence to Sydney, she seeks a period of 56 days (8 weeks) to comply with such an order, whereas the father and ICL seek a period of 42 days (6 weeks) for the mother to so comply. The court will allow the mother 8 weeks to comply with the Court’s order in this context; the mother, as submitted by her to the Court on 3 September 2019, may well need time to consider day care arrangements of the child in Sydney, rental accommodation, and employment issues.
The father and ICL are not opposed to an order that the mother cause the child’s primary place of residence to be located in the Sydney Metropolitan area within a 30km driving distance of Suburb K, NSW. The mother, in circumstances where she is ordered to relocate the child’s residence back to Sydney, seeks an order that such radius should be not less than 35km “to provide our client greater opportunity to secure affordable accommodation.” Further, the mother opposes the proposal of the ICL and father to restrain the mother from changing the child’s primary place of residence by reference to the suburb Suburb K, “on the basis that the father currently resides in rental accommodation at Suburb K and may change his living arrangements to an alternative location and suburb in the future.”
The father’s evidence was that he rents premises in Suburb K, he has a lease in place for 12 months, and that from his conversations with the managing agent, he understood the landlord was happy for him to extend the lease upon its expiry, with a view to becoming a long-term tenant. There was no significant evidence that the father was proposing to leave the Suburb K area.
The father’s evidence referred to numerous suburbs within a 25 km radius of his present residence at Suburb K. The mother stated, in her trial affidavit, her preference would be to rent a property in the Suburb Q area, should she be required to relocate the child’s residence back to Sydney.The father at trial did not seek to mount a significant case that the Suburb Q area would be too far from Suburb K to enable him to spend time with the child as he proposed. The court observes that according to Google Maps, the suburb of Suburb Q is about 27 km via the freeway from Suburb K, and such reference to Google Maps was brought to the parties and ICL’s attention on 3 September 2019 for submissions and which were made by them. It will be in the best interests of the child that the restraint upon the child’s primary place of residence be within a 30km driving distance of Suburb K.
The mother opposes the court making orders for the child to spend overnight time with the father on special occasions as proposed by the ICL in her revised proposed orders 7.5, 7.6, 8.5 and 8.6. Consistent with the court’s view that the child should not begin to spend overnight with the father until … 2021 and 3 consecutive overnights with the father from … 2023, it will be in the best interests of the child that the ICL’s revised proposed orders 7.5 and 8.5, relating to Easter, be amended so that “2021” is replaced by “2023”.
In circumstances where the mother and child are living in Sydney, it will not be in the best interests of the child to make the mother’s proposed orders 9.3 and 9.4 as set out in her Further Amended Response. Rather, it will be in the child’s best interests to make the ICL’s revised proposed Orders 7.6 and 8.6 but deleting “2020” from each proposed Order and replacing with “2021”.
The ICL’s proposed orders relating to telephone communication between the child and the parents, international travel, and ancillary orders including the parties completing the Keeping Contact program and Keeping Kids in Mind course, communication app, and restraining orders, will be in the best interests of the child. Inter alia, such orders will assist in the development and maintenance of the children’s meaningful relationship with both parents, and assist the parents in adequately communicating with each other in the context of their co-parenting the child.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.That the parents have equal shared parental responsibility for X born … 2018 (“X”).
2.That the child X, lives with the mother.
3.Within 56 days from the date of these orders, the mother shall do all acts and things necessary so as to cause X’s primary place of residence to be located in the Sydney Metropolitan area (such to be within a 30km driving distance of Suburb K, NSW) and until such time that this occurs, the arrangements as stipulated in the orders made on 1 February 2019 continue.
4.Within 7 days prior to the mother’s move pursuant to order 3, the mother shall do all acts and things necessary so as to notify the father in writing of her new residential address.
5.Upon the mother complying with order 3, the mother be and is hereby restrained from changing X’s primary place of residence to outside the Sydney Metropolitan area being more than a 30km driving distance of Suburb K NSW.
6.Upon the mother’s compliance with order 3, X spend time with the father as agreed in writing between both parents, but failing agreement as follows:
Until … 2020 (when X is approx. 2 years of age)
In week one (and each alternate week thereafter)
6.1.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.2.Saturday from 8am to 12pm;
In week two (and each alternate week thereafter)
6.3.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.4.Sunday from 8am to 12pm;
From 1 February 2020 until 30 April 2020 (From approx. 2 years to 2 years and 3 months of age)
In week one (and each alternate week thereafter)
6.5.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.6.Saturday from 8am to 2pm;
In week two (and each alternate week thereafter)
6.7.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.8.Sunday from 8am to 2pm;
From 1 May 2020 until 31 December 2020 (From approx. 2 years and 3 months to 3 years of age)
In week one (and each alternate week thereafter)
6.9.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.10.Saturday from 8am to 5pm;
In week two (and each alternate week thereafter)
6.11.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.12.Sunday from 8am to 5pm;
From … 2021 until 31 March 2021 (From 3 years to 3 years and 3 months
In week one (and each alternate week thereafter)
6.13.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.14.Saturday from 1pm to Sunday 1pm;
In week two (and each alternate week thereafter)
6.15.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.16.Sunday from 8am to 5pm;
From 1 April 2021 until 30 June 2021 (from 3 years and 3 months to 3 and a half years)
In week one (and each alternate week thereafter)
6.17.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.18.Saturday from 8am to Sunday 1pm;
In week two (and each alternate week thereafter)
6.19.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.20.Sunday from 8am to 5pm;
From 1 July 2021 until 31 December 2021 (From 3.5 years to approx. 4 years)
In week one (and each alternate week thereafter)
6.21.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.22.Saturday from 8am to Sunday 5pm;
In week two (and each alternate week thereafter)
6.23.Each Monday and Wednesday from 3.30pm to 5.30pm;
6.24.Sunday from 8am to 5pm;
From … 2022 to 31 December 2022 (From approx. 4 years to 5 years)
In week one (and each alternate week thereafter)
6.25.Wednesday from 3.30pm to 5.30pm;
6.26.Friday from 4.30pm to Sunday 5pm;
In week two (and each alternate week thereafter)
6.27.Wednesday from 3.30pm to Thursday 9am
From … 2023 and on an ongoing basis thereafter (from approx. 5 years)
In week one (and each alternate week thereafter)
6.28.From the conclusion of school on Wednesday or 4.30pm if X is not at school until before school Thursday or if X is not attending school until 9am;
6.29.From the conclusion of school on Friday or 4.30pm if X is not at school until before school Monday or if X is not attending school until 9am;
In week two (and each alternate week thereafter)
6.30.From the conclusion of school on Wednesday or 4.30pm if X is not at school until before school Thursday or if X is not attending school until 9am;
Notwithstanding anything else where contained in these Orders to the contrary, X spend time with the father as follows:
7.1.Upon X commencing school and commencing in the Term 2 school holidays of X’s first year of school, for one half of Term 1, 2 and 3 NSW school holiday periods being the first half in even numbered years and the second half in odd numbered years;
7.2.Upon X commencing school, for Term 4 NSW school holiday periods each alternate week such time to commence the first week in even numbered years and the second week in odd numbered years and for the purposes of this Order, such time to be for 7 consecutive nights commencing at 5pm and concluding at 5pm;
7.3.On the weekend that falls on Father’s Day, in 2020 from 9am to 5pm and from 2021 onwards, from 5pm on the Saturday preceding Father’s Day to 5pm Father’s Day;
7.4.On X or the Father’s birthday, if during the week from 5pm to 7pm and if on the weekend from 2pm to 6pm;
7.5.Provided such time does not fall pursuant to Order 7.1, during the Catholic Easter period, commencing in 2023 from 6pm Holy Thursday to 6pm Easter Saturday in even numbered years and from 6pm Easter Saturday to 6pm Easter Monday in odd numbered years;
7.6.Commencing in 2021, from 12pm Christmas Eve until 12pm Christmas Day in even numbered years and from 12pm Christmas Day to 12pm Boxing Day in odd numbered years;
7.7.At other times as agreed between the parents.
Notwithstanding anything else where contained in these orders to the contrary, X spend time with the mother as follows:
8.1.Upon X commencing school and commencing in the Term 2 school holidays of X’s first year of school, for one half of Term 1, 2 and 3 NSW school holiday periods being the first half in odd numbered years and the second half in even numbered years;
8.2.Upon X commencing school, for Term 4 NSW school holiday periods each alternate week such time to commence the first week in odd numbered years and the second week in even numbered years and for the purposes of this order, such time to be for 7 consecutive nights commencing at 5pm and concluding at 5pm;
8.3.On the weekend that falls on Mother’s Day, in 2020 from 9am to 5pm and from 2021 onwards, from 5pm on the Saturday preceding Mother’s Day to 6pm Mother’s Day;
8.4.On X or the mother’s birthday, if during the week from after school or if a non school day from 3pm to 5pm and if on the weekend from 10am to 2pm;
8.5.Provided such time does not fall pursuant to order 8.1, during the Catholic Easter period, commencing in 2023 from 6pm Holy Thursday to 6pm Easter Saturday in odd numbered years and from 6pm Easter Saturday to 6pm Easter Monday in even numbered years;
8.6.Commencing in 2021, from 12pm Christmas Eve until 12pm Christmas Day in odd numbered years and from 12pm Christmas Day to 12pm Boxing day in even numbered years;
8.7.At other times as agreed between the parents.
For the purposes of School Holiday periods:
9.1.The school holidays are to commence at 5pm on the last day that X is required to attend school;
9.2.The school holidays are to conclude at 5pm on the day before X is required to recommence school;
9.3.For Term 1, 2 and 3 school holidays, changeover shall occur on the mid-point day of the particular holiday period at 5pm (usually a Saturday);
9.4.For Term 4 school holidays, changeover shall occur at 5pm.
Changeover
10. For the purpose of these orders, the parent who is due to commence time with X pursuant to these orders shall collect X from school if time commences from school otherwise from the other parent’s place of residence. For the purposes of changeover, such can take place by the parent or their nominee known to the child.
Telephone communication
11. As from 1 July 2021, the father be at liberty to telephone or video call (either by skype or facetime) X when he is not in his care each Tuesday and Thursday between 6.30pm and 7pm and for the purpose of this order, the father shall call the mother and the mother shall facilitate such communication.
12. As from 1 July 2021, the mother be at liberty to telephone or video call (either by skype or facetime) X when he is not in her care each Tuesday and Thursday between 6.30pm and 7pm and for the purpose of this order, the mother shall call the father and the father shall facilitate such communication.
International travel
13. As from 1 July 2022, each party be entitled to travel overseas with X upon provision to the other parent of:
13.1.At least 28 days written notice of their intention to travel;
13.2.Full details of the itinerary evidencing outbound and return flights and accommodation;
13.3.Full copy of itinerary;
13.4.Full copy of X’s contact details whilst overseas;
13.5.On the condition that either the mother or father (as the case may be) accompanies X, that such travel is for no longer than a period of 21 days and that such travel does not exceed more than once per year.
14. The parties shall do all acts and things to ensure that X always has a valid Australian passport and for the purposes of issuing the passport, each party will pay one half of the said costs.
15. X’s passport shall be held in the mother’s possession.
16. To give effect to order 12, the mother shall provide to the father X’s passport within 7 days from him requesting the said passport and after the father has finalised his travel with X, he shall forthwith return the passport to the mother.
Ancillary orders
17. That within 28 days of the mother’s compliance with order 3, both parents will enrol in Uniting’s “Keeping contact” program and will do all things necessary to complete the program as soon as reasonably practicable and inform the other parent in writing within 7 days of enrolment in same.
18. That within 28 days of the mother’s compliance with order 3, both parents will enrol in the “Keeping kids in mind” course and will do all things necessary to complete the course as soon as reasonably practicable and inform the other parent in writing within 7 days of completion of same.
19. Each party notify the other not more than 24 hours after any change to their address and/or landline and/or mobile telephone number.
20. Each party will respond as soon as reasonably practicable to the other party’s communication concerning X.
21. Each party shall encourage and support X to participate in extra-curricular activities and each party shall be at liberty to attend same.
22. Each party be at liberty to attend any school events including but not limited to assemblies, parent/teacher interviews and school carnivals.
23. The father and mother shall provide to the other any medication prescribed for X whilst he is in their care, along with information as to how that medication is to be taken and each party is to ensure that X takes his medication as prescribed.
24. Each party notify the other as soon as possible, in any event, within 4 hours, of any serious injury or illness suffered by X whilst he is with that party.
25. The parties will ensure they speak courteously and respectfully to one another without the use of belittling or derogatory language.
26. The parties are restrained from denigrating one another or a member of the other parent’s family in the presence of hearing of X and will take reasonable steps to ensure that other people do not denigrate the other parent or their family in the presence or hearing of X.
27. Within 28 days the parents will arrange for the use of a communication app designed for use by separated parents and will maintain use of such app as their primary source of communication except in case of emergency whereby the parents will communicate via telephone and the parents be jointly responsible for the cost of the communication app.
Independent children’s lawyer’s costs
28. That within 28 days of the date of these order, the applicant shall pay to Legal Aid NSW the sum of $4,078.00, being one half of the costs of the independent legal representation for X.
29. That within 28 days of the date of these order, the respondent shall pay to Legal Aid NSW the sum of $4,078.00, being one half of the costs of the independent legal representation for X.
Notation A: Both parents will use their best endeavours to ensure that the father’s alternate weekend time with X coincides with the weekend that the father has his son A in his care.
I certify that the preceding three hundred and forty two (342) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 24 September 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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