DANNIELL & MOUNCE

[2019] FamCA 264

FAMILY COURT OF AUSTRALIA

DANNIELL & MOUNCE [2019] FamCA 264

FAMILY LAW – REVIEW OF SENIOR REGISTRAR DECISION – Relocation – Where the mother lives in City A and the father lives in Sydney – Where the father seeks the mother return to Sydney with the child, or in the alternative, that the child live with him – Where the mother is the child’s primary caregiver – Where the parents have never lived in the same household – Where the mother has a significant history of mental illness – Where the mother has greater familial support in City A – Where there is a risk that the mother’s mental health would be adversely affected by a return to Sydney - Where both parties allege a history of family violence – Where both parties are confident in the other’s parenting capacity – Where the mother cannot afford to live in Sydney – Where the child is settled in City A  - Orders made for the child to live with the mother and spend time with the father in Sydney.

Family Law Act 1975 (Cth) s60CC

Adamson & Adamson (2014) FLC 93-622.
Oswald & Karringson [2016] FamCAFC 152.

APPLICANT: Mr Danniell

RESPONDENT: Ms Mounce

FILE NUMBER: SYC 5699 of 2016

DATE DELIVERED: 29 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Cummings of Senior Counsel
SOLICITOR FOR THE APPLICANT:	Lander & Rogers
COUNSEL FOR THE RESPONDENT:	Ms Christie of Senior Counsel
SOLICITOR FOR THE RESPONDENT:	Newnhams Solicitors

Orders

IT IS ORDERED

1. That all previous orders be discharged.

2. That the parties have equal shared parental responsibility of the child, (“The child”) born … 2015.

3. That the child live with the mother in City A at all times he is not spending time with the father.

4. That the child spend time with the father as agreed or failing agreement as follows:

(a)Each alternate weekend from 12 noon Saturday until 4pm Monday subject to Order 9, excluding Mother’s Day weekend;

(b)On Father’s Day from 4pm on the Saturday immediately preceding Father’s Day until 12 noon on the Monday immediately following Father’s Day.

1. Notwithstanding any other Order, the child spend time with each of his parents by agreement, or failing agreement as follows:

(a)During Easter as follows

1. From 12 noon on the Thursday immediately preceding Good Friday until 12 noon Easter Sunday with the father in even numbered years and with the mother in odd numbered years;

(ii)From 12 noon Easter Sunday until 12 noon on the Tuesday immediately following Easter Monday with the mother in even numbered years and the father in odd numbered years.

(b)During Christmas as follows:

1. From 12 noon 24 December until 12 noon on 26 December with the father in even numbered years and with the mother in odd numbered years;

(ii)From 12 noon 26 December until 12 noon 28 December with the mother in even numbered years and with the father in odd numbered years.

1. That all changeovers, other than as provided in Order 7, be at McDonalds City B unless otherwise agreed in writing.

2. That should the father elect to have the child fly to and from Sydney once per month in order to spend time with him in accordance with Order 5 (a), then the following shall apply:

   (a)       The father is to give the mother notice 30 days in advance in writing of his intention to have the child fly to and from Sydney;

   (b)       The father’s time pursuant to order 4(a) be from 9am Saturday until 5pm Monday;

   (c)       The father is to meet the costs of the child’s and his return flights;

   (d)       The mother is to meet the cost of her flights;

   (e)       Changeover occur as follows:

   (f)       At the commencement of the father’s time at Sydney Domestic Airport;

   (g)       At the conclusion of the father’s time at City A Airport.

3. That in the event that the father is in the City A region on the child’s birthday and the father would not otherwise spend time with the child on that day, then the father have time with the child from 12 noon or the conclusion of day care until 7pm.

4. That during the 2019 school holiday period, the child spend 4 consecutive nights with the father as agreed, or failing agreement, as nominated by the father 90 days in advance in writing with such time not to occur immediately preceding or proceeding the father’s usual weekend pursuant to Order 4(a).

5. That during the 2019 Christmas school holiday period, the child spend two periods of 4 consecutive nights with the father as agreed, or failing agreement for the first 4 consecutive nights as nominated by the mother 90 days in advance in writing and the second 4 consecutive nights as nominated by the father 90 days in advance in writing, with such period not to occur immediately preceding or proceeding the father’s usual weekend pursuant to Order 4(a).

6. That during the 2020 July school holiday period, the child spend 5 consecutive nights with the father as agreed, or failing agreement nominated by the mother 90 days in advance in writing, with such period not to occur immediately preceding or proceeding the father’s usual weekend pursuant to Order 4(a).

7. That during the 2020 Christmas school holiday period, the child spend two periods of 5 consecutive nights with the father as agreed, or failing agreement for the first 5 consecutive nights as nominated by the mother 90 days in advance in writing and the second 5 consecutive nights as nominated by the father 90 days in advance in writing, with such period not to occur immediately preceding or proceeding the father’s usual weekend pursuant to Order 4(a).

8. That the child shall communicate with the parent with whom he is not residing by way of video call each Tuesday, Thursday and Sunday from 6pm to 6.30pm with the parent with whom the child is living to be responsible for initiating such call.

9. That each parent shall inform the other and keep the other informed in relation to all health issues concerning the child that may arise whilst the child is living in their care and upon the making of any medical appointment for the child, or the child’s attendance upon any health professional or institution shall forthwith advise the other and provide them with the opportunity to attend such appointment in person or by telephone.

10. That each parent shall do all things necessary to ensure that the other is authorised to obtain all information and documents available to each parent from all health professional, care providers and school attended upon by the child.

11. That each party forthwith notify the other of any change in their residential address, telephone number and/or personal email address.

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

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5699 of 2016

Mr Danniell

Applicant

And

Ms Mounce

Respondent

REASONS FOR JUDGMENT

1. Mr Danniell (“the father”) and Ms Mounce (“the  mother”) are the parents of the child who was born in 2015.

2. The parents never married and never lived together.

3. After the child was born, both parents lived in the Sydney. Relevantly, the mother lived in rented accommodation. They were able to negotiate arrangements for the child to spend time with his father but it is not disputed that the child lived primarily with his mother and that she has been his primary carer since birth.

4. It is the mother’s case that the relationship with the father was emotionally and psychologically abusive and, on one occasion which the father admits, physically abusive.

5. The mother has a long standing history of mental health difficulties which particularly manifested during her pregnancy with the child when she was treated by a psychiatrist. In May 2016 the mother commenced therapy with Mr E and that therapeutic relationship continued until late 2018. The referral to Mr E was made by the police through the program F.

6. The father commenced parenting proceedings in the Federal Circuit Court in September 2016. In March 2017, orders were made by consent for the child to spend time with the father on three days each week, graduating to overnight time in October 2017 and, from April 2018, for two periods each week from Sunday afternoon until Monday afternoon and from Thursday evening until noon on Friday.

7. In 2017, at the instigation of the father, an Apprehended Domestic Violence Order (“ADVO”) was sought against the mother for the protection of the father and Ms G, the father’s new partner, that resulted in a defended hearing. The mother asserts that the process, whereby the application was ultimately dismissed, caused her significant financial and emotional distress.

8. Those Orders were varied, again by consent, in December 2017 so that the child spent time with the father from 6pm Sunday to 6.30pm Monday and from 6.30pm Wednesday until 8am Thursday each week.

9. In June 2018, the mother discovered that the father was expecting another child with Ms G. This knowledge appears to have caused an extreme reaction in the mother who, the father alleges, threatened to kill Ms G.

10. From early June 2018, the mother took indefinite leave from her employment because of her mental health difficulties. She resigned from her employment and is now in receipt of an income from her income protection insurer based on their acceptance of her inability to continue in that employment.

11. On 27 June 2018, the mother’s solicitors wrote to the father’s solicitors advising him that the mother intended to move to City A to live with her father and his wife.

12. The child of the father and Ms G was born in 2018. The child, a girl, was named H which the mother says was a name she and the father had discussed if the child was a girl.

13. On 7 September 2018, the matter was before the Federal Circuit Court. Orders were made to facilitate the child being enrolled in pre-schools commencing in 2019, both at Suburb J as sought by the father, and in City A as sought by the mother. The proceedings were transferred to the Family Court, it being understood that the interim issue to be determined was the mother’s proposed relocation.

14. In September 2018, the lease on the mother’s rented premises expired. She did not renew the lease and, for a time, lived with her mother and with various friends in Sydney.

15. In December 2018, the maternal grandmother left Sydney and moved to City C and the mother moved to live in City A, returning to Sydney with the child so that he could spend time with the father in accordance with the existing orders. On those occasions, she stayed with friends or in hotels.

16. The mother’s application to relocate with the child to City A was heard by Senior Registrar Campbell on 7 December 2018. The Senior Registrar ordered that the mother be permitted to move with the child to City A and that the child spend time with the father each alternate weekend from noon Saturday until 4pm Monday. The Orders of the Senior Registrar provided for the child to spend time with the father in school holidays in block periods of four nights in 2019 and five nights in 2020. The orders also dealt with issues of travel, with changeovers to be at City B unless the father arranged to fly the child to and from Sydney.

17. The father has sought to review the Orders of the Senior Registrar and thus the matter comes before me for hearing de novo.

18. The parents saw a Family Consultant on 23 January 2019.

19. The Family Consultant recorded the parties’ recital of the issues and concerns as follows:

    [The father] alleged that in 2016 [the mother] made threats against the life of his current partner … He alleged that [the mother] said to him “If she … comes near my son I’ll kill her”, or words to that effect. He alleged that [the mother] has at times yelled at him and called him names such as “cunt”, thrown objects, punched walls and on one occasion pushed him slightly. [The father] claimed that [the mother] manipulated him into having sex with her when he did not necessarily want to. [The father] claimed that [the mother] is using the family law system to “punish him” for “not choosing her”. [The father] conceded that there have been times when he has raised his voice to [the  mother].

20. In relation to the mother the Family Consultant noted:

    [The mother] agreed that she once made a statement about killing [the  father’s partner]. She said, however, that this statement was made in the context of her discovering that [the father] was in another intimate relationship, and that she was upset by the thought of [the child] spending time with another women …

    [The mother] alleged that [the father] completely dominated her, gaslighted her, and emotionally manipulated her to a point where she constantly sought professional assistance during their relationship. She alleged that, early in their relationship, [the father] punched her causing her to “see stars”. She claimed that [the father] undermined her self-confidence by telling her she is “fat, ugly and dumb”. [The  mother] alleged that [the father] was sexually abusive towards her, and that he forced her to participate in anal sex with him, causing anal bleeding. She alleged that [the father] was so rough with her during sex that he caused her to develop a hernia. She claimed that [the father] was severely emotionally neglectful of her, and that he is skilled in undermining women’s self-confidence. She said “He wore me down so much that my clients told me that I had become unrecognizable. [The mother] claimed that [the father] is using the family law system to try to “destroy” her. She claimed that [the  father] even went so far as to taunt her by naming his most recent child which she claimed is the name she had planned to give [the child], had [the child] been a girl.

21. The Family Consultant noted that both parents praised the other’s parenting.

22. The Family Consultant concluded:

    This preliminary assessment has identified some significant allegations of family violence and coercive controlling behaviour perpetrated by both parents, and particularly that of [the father]. If these allegations are accurate, this could have serious implications for the parents’ parenting capacity. Having said that, it would appear that [the child] is a much loved child.

    It is difficult to make much comment on the parents’ respective proposals, without a more comprehensive assessment. It would go without saying, however, that the distance between [Sydney] and [City A] will probably have a substantial impact on [the child’s] relationship with [the father]. It appears that the primary dilemma in this matter is to weigh [the child’s] need to retain his relationship with his father, against the likely positive affect on [the mother’s] parenting capacity to remain physically distanced from [the father]. From [the mother’s] perspective, she has endured serious abuse, and it may be beneficial for [the child] to have his mother live in a supported extended family environment. If [the mother’s] parenting is enhanced by this, this may ameliorate any difficulties for [the child] in retaining a relationship with [the father] while still living in [City A]. According to both parents, [the child] has thus far retained his relationship with [the father]. It is unclear, at this early stage, if the parents have the capacity to sustain the current arrangement.

23. These proceedings are of an interim nature and, in relation to the many contested issues of fact, no findings can be made.

24. This is particularly so in relation to the allegations of family violence which are raised in the mother’s case.

ORDERS SOUGHT

1. The mother wishes to maintain the Orders made by the Senior Registrar.

2. The father’s application proposes a cascading set of proposals.

3. No attempt was made to compare the respective proposals of the parents to see if there was any common ground. It has been left to me to perform that task in relation to special occasions such as Christmas, Easter, birthdays and other special days and other ancillary matters. The complexity of that exercise is demonstrated by the fact that the Orders of the Senior Registrar comprised 17 operative clauses and the father’s application comprises 35 clauses in his primary application, and 30  clauses in his alternate proposal.

4. Other than in relation to time spent on weekends and holidays, and changeovers, no submissions were made in relation to the ancillary orders sought by the parties and I was not directed to any evidence which demonstrated that the proposal of either party should be preferred as being in the child’s interests, to the proposal of the other.

5. The father’s primary position is that the mother should return to Sydney and live with the child at an address within 10 kilometre radius of the Suburb J pre-school. To facilitate that proposal, he will meet the cost of a rental bond and pay three months’ rent in advance up to the sum of $700  per  week. Thereafter, he will pay $300 per week towards the mother’s rent. The father would then spend time with the child each Thursday from the end of day-care or 6.30pm until 8am or the commencement of day care on Friday. In the first week of each two week cycle, he proposes that the child spend the weekend from 8am Saturday until 6.30pm Monday with him. In the second week, the child would spend Monday with the father from 8am until 6.30pm.

6. The father proposes that the child spend five night block periods with him in the 2019 Christmas holidays and seven day block periods in 2020.

7. In the event that the Court determined that the child should live in Sydney and the mother declined to move to Sydney, the father proposed that the child eventually live with him, after an introductory period of six weeks where the child spends initially three, then four, then five nights with him. Thereafter, he proposed that the child spend four nights each fortnight with the mother.

8. In the event that the Court determined that the child should remain living with the mother in City A, the father sought time on two out of every three weekends, in the first week from noon Saturday until 8am on Tuesday; in the second week from 9am Saturday until 5.30pm on Monday.

9. In relation to changeovers, the father proposed changeover in City B at noon Saturday and that the mother collect the child from him in Sydney at 8am on Tuesday. For the second week, the father proposed that he would collect the child at City A airport at 9am on Saturday and the mother would collect him at 5.30pm on Monday in Sydney.

10. The father sought unspecified “additional time” excluding holiday time, on six occasions each year.

THE MOTHER’S MENTAL HEALTH

1. Professor L, a consultant psychiatrist, reviewed the mother on 1 December 2014 at a time when the mother was 20 weeks into her pregnancy. Professor L reported:

   [The mother] was referred by her midwife in the context of major relationship issues and an unplanned pregnancy with significant past mental health history. [The mother] works full time as a manager and enjoys her job. She has lived apart all along from [the father] her unfaithful partner, and this pregnancy was as a result of a failed use of the oral contraceptive pill. [The mother] herself was ready to have a child even though [the  father] does not want the baby. She has decided to go ahead and be a single parent. Unfortunately, she continues to be very much attached to [the father] and is willing to put up with whatever treatment he inflicts on her. 

   I note that [the mother] has seen a counsellor… for joint counselling and more recently saw a counsellor… following a period of being stalked by one of [the father’s] many partners, who had found out about where she lived and worked. She did not follow thru [sic] with counselling unfortunately as it seems she was not able to action any of their recommendations. Her key support is her mother, who will care for the baby. Again on quite well, her father will be financially supportive, but lives out of town …

   Past psychiatric history includes an eating disorder, requiring inpatient treatment with a 3-month admission at the age of 16, when she went down as low as 40kg in weight and was amenorrhoeic for 4 months period. She suffered with this condition until the age of 21, but says that now she is quite okay about her physical appearance, her weight, and indeed has managed it so far during the pregnancy. She describes periods of intermittent depression since the age of 16 and at her worst, is unable to function and this was when she was going through the HSC exams and had to be allowed to be exempt because of her hospital admission…

   In addition to her chronic low grade depression, she suffers with chronic suicidal ideation. She does not actually want to die, she just says she feels like she needs a break from the painful experience of being alive and trapped in an abusive relationship. Her mood is very reactive to [the father’s] treatment of her. She denies any panic attacks. She describes a worsening of her depressive systems since the stalking occurred in November of 2014, and there was a new wave of redundancies in the workplace.

   Over the years a number of antidepressants have been used including Zoloft, Effexor and possibly Tricyclics at the very start when she was 18 years of age. None of these has been effective.

   I also noticed that substantial history of alcohol dependence both binging and regular use up to 2 bottles of wine per day when her mood is at its lowest. She denies any drug use. She says she ceased alcohol intake with this pregnancy. She denies any history of self- harming or actual suicidal thoughts.

   (As per the original)

1. Professor L concluded:

   My impression is that this lady is presenting with a number of depressive symptoms, which have been chronic in the context of a series of highly dysfunctional relationships and now an unplanned pregnancy on a background of unmet dependency needs in childhood, some degree of abuse, significant family history of mental health issues, and very significant personality vulnerability in the cluster C and cluster B.

   At this stage, I shall review her in a month’s time and I have strongly encouraged her to go back and see her therapist to undertake [Dialectical behavioural therapy]. She advised that she cannot afford this because she will be a single parent, and I have just given her the details of three very good therapist [sic] who may be prepared to bulk bill her.

2. The social work notes produced by Hospital M record, on 7  April 2015, under the heading “Domestic Violence”:

   [The mother] denied any recent physical DV - states on one instance 3yrs ago [the father] slapped her face during an argument – they had both been drinking. [The mother] states nil physical violence or threats since however he did threaten her approx 4 months ago after her 20 week scan – he told her he would “psychologically destroy her”. [Social worker] asked what she took that to mean and [the  mother] states she felt that he would torment her psychologically by using her self esteem and depressive issues against her.

   [The mother] states she was so fearful after that threat she called the DV hotline for advice and to have that incident recorded somewhere.

   [The mother] states [the father] is very emotionally and psychologically abusive – he constantly cheats on her and has been very open and hurtful about this throughout their relationship.

   [The mother] states she has been harassed and stalked by these women in the past – nil current

   … [the mother] become very Teary when discussing same – states he has destroyed her self-esteem and feels she has no choice but to put up with his treatment.

   (As per the original)

3. In a report dated 3 December 2016 the mother’s therapist Mr E noted that he had completed 19 hours of counselling with the mother and requested the allocation of a further 22 hours of counselling time. Mr E reported:

   [The mother’s] initial report concerned historic sexual abuse as a child by her grandfather and dysfunctionality in her family of origin. Mention was also made to the emotional abuse and domestic violence in her relationship out of which her son was born. It is noted the custody of her son is now the focus of mediation and if necessary a family court matter regarding the same.

   During recent consultations [the mother] has disclosed three distinct and not previously known acts of violence. The first act of violence reported during the relationship her partner [sic] was when she was anally raped by him. The second and third acts of violence where when [the mother] contracted two bouts of sexually transmitted disease (STDs) during their relationship. [The mother] contracted through sex with her partner, who had contracted STDs through unprotected sex with other women during their relationships. Given her ex-partner is a medical practitioner, it is contended that these were wanton, malicious and violent acts. In turn he then provided medical treatment for her STDs. The ethics of such practice is highly questionable. This was within the interpersonal context of manipulation and emotional abuse.

4. Mr E stated under the heading “Prognosis and expected outcomes” the following:

   The following factors were considered as influencing a poor prognosis for [the mother]. She is currently involved in mediation regarding custody of her child. This involves weekly consultations with a mediator/psychologist and her ex-partner. It is contended that this constitutes an ongoing and continued contact with her contemporaneous abuser. Her recent disclosures of sexual violence involving her ex-partner and the continued dynamics between them, the mediation meetings are considered an ongoing risk to [the  mother’s] functioning and progress.

5. Mr E provided a report for the purpose of the proceedings dated 8  September 2018. Mr E stated:

   [The mother’s] background was considered reflective of complex trauma. Complex trauma is not a distinct diagnosis, rather a clinical concept. Her complex trauma history would increase her vulnerability to mental health issues in adult life.

   [The mother] was diagnosed with Post-Traumatic Stress Disorder … and Dysthymia (also known as Persistent Depressive Disorder …) [The mother’s] PTSD was due to her relationship with her ex-partner. In turn this was exacerbated by her ongoing legal matter. [The mother’s] Dysthymia was secondary to her PTSD. Her PTSD was rated as moderate in impairment when she presented. This was evidenced by her ability to continue to work full time and ratified in psychometric screening test administered.

6. Mr E stated:

   [The mother’s] prognosis was considered positive overall. Her planned residential move to [City A] was considered another positive factor in her prognosis. The planned move to [City A] enabled access to the additional support of her father and his partner. The potential move was considered a ‘fresh start’. [The mother] has had a positive response to the last two years of psychological treatment given. Gains were made despite the ongoing legal matter and the concomitant stress associated with a legal matter. Although [the mother’s] overall prognosis was rated as positive, relapse back into previous difficulties cannot be excluded.

7. Mr E noted that the mother’s scores on testing had improved six  months into counselling and her level of depression was then in the mild range and her level of anxiety in the moderate range. Mr E noted that the mother’s levels of depression, anxiety and stress had improved to be in the normal range by 1 August 2017 and that she continued to maintain improvement throughout 2017.

8. Mr E stated:

   [The mother] was initially referred through [program F] Counselling for assessment and treatment of psychological injuries arising from an abusive and sexually violent relationship. She had a child from the relationship. In turn ongoing legal matters have meant the effects of the relationship continued to affect her. She was diagnosed with Post-Traumatic Stress Disorder and Dysthymia as the psychological consequences or injuries. Over the course of treatment both conditions were effectively treated. This was reflected in her self-report and changes in scores on screening tests administered. The improvement was sustained over the course of treatment. The focus of consultations during 2018 changed to address other issues in her life such issues related to problems at work. During 2018 the possibility of moving to [City A] emerged. This move was considered positive … Therefore future treatment may not be necessarily indicated.

9. Mr E concluded:

   [the mother’s] planned move to [City A] was considered positive for her prognosis in so far as it enabled a ‘fresh start’ or ‘new beginning’ for [the mother] and her son. So it does remain to be seen how much further treatment is necessary. My understanding is that [the mother] will be living with her father and his partner on their property. This was considered as potentially beneficial for her parenting and the health and well-being of her son. The family environment becomes a blended family with more support available to [the mother] and more support and interaction for her son with his grandfather.

10. In her report after the interviews on 23 January 2019, in relation to the mother’s mental health, the Family Consultant noted that the father alleged that the mother experiences post-traumatic stress disorder, depression and anxiety. The mother agreed. The Family Consultant noted:

    She said that the alleged abuse she experienced during her relationship with [the father] combined with stress in relation to the ADVO proceedings, have caused her mental health to suffer. She said, however, that her mental health is currently well-managed, and that she attends upon a therapist and general practitioner. [The  mother] said that, since moving to [City A], removing herself from [the father] and receiving the support of her family in [City A], her mental health has improved significantly.

11. In a report to the mother’s insurer dated 8 February 2019 Dr N noted: “Has relocated to City A to be close to family support worsening depression/anxiety symptoms with upcoming court date April 17, 2009”.

12. Dr N noted that the mother’s diagnosis was reactive anxiety and depression and that she reported suffering from poor concentration, feeling overwhelmed, having a low mood at times and having trouble coping. Dr N noted that the mother was waiting for an appointment with a new mental health worker and was currently prescribed medication.

13. In a report dated 8 March 2019 Dr N noted: “Remains in City A. Finds being here with family better. Is more active and feeling mildly better. But upcoming court date April 17 2019 is very anxiety provoking.”

14. Dr N noted that the mother had poor concentration, trouble coping and was feeling “quiet overwhelmed. Some flash backs with triggers”. Dr N noted that an appointment had been made with the mother’s mental health worker for counselling in May and that she was continuing to take medication but at an increased dose. She noted that the mother was feeling calmer and had “turned a bit of a corner”.

15. On behalf of the father it was submitted that the Court could not assume that the mother’s mental health would be adversely affected if she were required to return with the child to Sydney.

16. I do not accept that submission.

17. The mother has a longstanding and significant history of mental health problems.

18. Without expert evidence, it is not possible to predict what the effect of her returning to Sydney would be on her mental health and consequently on her parenting.

19. In her affidavit sworn 10 April 2019, the mother deposed:

    I do not know when I will be well enough to return to work. I continue to suffer from depression and anxiety. I continue to feel overwhelmed form time to time as well as having poor trouble concentrating and flash back of traumatic events. I have however noticed an improvement since being away from [Sydney] and in [City A]. When I have to come to [Sydney] for court events and the like I experience as [sic] sense of dread and panic.

20. Even the possibility that her mental health would be adversely affected by such a move poses a risk to her capacity to parent that is not tenable.

21. It cannot be in the child’s interest for his mother’s mental health to be put at risk.

Section 60CC factors

1. It is not in dispute that the child will benefit from having a meaningful relationship with both of his parents. There is also no issue that he has such a relationship now.

2. One of the considerations, in a final hearing, is whether that relationship can be sustained at a distance.

3. At a final hearing, there can be a proper ventilation of the mother’s allegations in relation to family violence and of the ramifications of the mother’s mental health for future parenting.

4. However, at this stage of the proceedings, none of those matters can be determined.

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views

1. The child is just four years old and his views have not been canvassed.  

The nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child)

1. The mother has been the child’s primary carer since birth. This is made more significant by the fact that the child has never experienced his mother and his father living in the same household and so, when he is in his mother’s care, his father has always been absent.

2. It is reasonable to assume, for the purposes of this application, that the child’s primary and strongest attachment is to his mother.   

3. That assumption is implicitly recognised by the father in so far as his application suggests that there needs to be a “lead in” period before the child is moved into his care, presumably to allow the child to strengthen his attachment to his father.

4. There is no evidence about the child’s attachment to other significant adults. He has now been living with his maternal grandfather and step  grandmother for some four months and it is reasonable to assume that he has some attachment to them. It is also reasonable to assume that he is attached to his maternal and paternal grandmothers.

5. I accept that he loves his six month old half-sister, H, but I note that she does not live in the father’s household. The child will be able to spend time with H, subject to the agreement of Ms G, on each weekend that he spends with the father in Sydney.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

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

1. The child has no experience of living in the primary care of his father.

2. He has always known his mother as his primary carer. There is no evidence about the effect on him of being removed from her care but it can be assumed that it would cause him grief and a sense of loss. No doubt, in the final hearing, this aspect will be the subject of expert evidence.

3. The child is settled in City A. He has lived there for four months. He has commenced at pre-school in … 2018 and the pre-school report indicates he is settled, confident and building friendships there.

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

1. The mother does not wish to return to live in Sydney.

2. It is her case that she is unable to afford to do so even with the father’s proposed financial support and that her mental health would be adversely affected by being forced to live in proximity to the father.

3. I propose to consider here the practical effect of the father’s application.

4. These parents were never married and never lived in a de facto relationship. Thus this Court has no jurisdiction over their financial affairs and no power to make orders which might be characterised as spousal maintenance orders.

5. It is conceded, on behalf of the father, that his proposal to pay a bond for the mother and to pay rent for three months, then a contribution of $300  per week, can only be seen as a condition of any order that the child return to Sydney.

6. It is also conceded that, if such a condition were imposed, it cannot be enforced, potentially leaving the mother in the position where she moves to Sydney in reliance on the father’s financial assistance and cannot rely on its continuing.

7. The mother’s income from her income protection insurance is a net $3,858 per month or $890 per week. In addition the father pays child support of $400 per week.

8. There is no evidence of the amount of rent that would have to be paid for premises suitable for the mother and the child within a 10 kilometre radius of Suburb J. The mother tendered rental enquiries in relation to two bedroomed properties in Suburb J with parking which suggest that she cannot afford to live in Suburb J. How the mother would afford to pay rent in Sydney, even with the assistance of the father if it is forthcoming, is not certain.

9. She has no capital reserves.

10. I do not accept the submissions on behalf of the father that, because her father has provided financial assistance to her, he should be regarded as a financial resource. He has no obligation to assist the mother in payment of rent or living expenses and he cannot be compelled to do so.

11. Whether the child lives in City A with the mother or in Sydney with the father, the practical difficulties associated with travel for contact are the same.

12. I accept that those difficulties disappear if the mother lives in Sydney.

13. The father deposed to an income of $633,000 per annum. He owns a unit in Suburb J that he estimates to be worth $2,200,000 and two investment properties. He has in excess of $191,000 in the bank. Although he has significant liabilities, he is better able than the mother to finance the cost of travel for the child.

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

1. Each parent praised the parenting of the other in their conference with the Family Consultant.   

2. Neither has suggested that the other cannot properly care for the child.

Any family violence involving the child or a member of the child's family

1. Family violence has been raised by both parents.

2. The mother made allegations of family violence to the social worker at Hospital M and to the Family Consultant. The mother’s therapist, Mr E records allegations made by the mother in the course of therapy. 

3. The father raised allegations of threats made by the mother towards him and towards Ms G.

4. These allegations will be the subject of evidence and cross-examination in the substantive proceedings. They cannot be assessed here but the existence of the allegations cannot be ignored and suggests that a cautious approach is necessary.

Any other relevant matter

1. Senior counsel for the mother   submitted that the order sought by the father is a coercive order and that the necessary factual basis to make such an order has not been demonstrated.

2. Senior counsel for the father submitted that the order is not coercive, but merely practical, since, if the Court orders that the child be returned to Sydney, and the mother chooses to remain in City A, the child will need to be placed in his care.                  

3. The power of the Court to make a parenting order is found in section 64B(2) of the Family Law Act 1975 (Cth) which provides:

   (2)  A parenting order may deal with one or more of the following:

   (a)  the person or persons with whom a child is to live;

   (b)  the time a child is to spend with another person or other persons;

   (c)  the allocation of parental responsibility for a child;

   (d)  if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   (e)  the communication a child is to have with another person or other persons;

   (f)  maintenance of a child;

   (g)  the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

   (i)  a child to whom the order relates; or

   (ii)  the parties to the proceedings in which the order is made;

   (h)  the process to be used for resolving disputes about the terms or operation of the order;

   (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

4. Notably, a parenting order does not deal with where the child lives, but with whom. It is arguable that, in the present instance, the order sought by the father is coercive but that is an issue that does not need to be resolved here.

5. In Adamson & Adamson (2014) FLC 93-622, the Full Court held:

   57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location at some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person's freedom.

   58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:

   (i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

   (ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent's choosing.

   (Emphasis added in original)

1. In Oswald & Karrington [2016] FamCAFC 152, the Full Court stated:

   It may be accepted, as it was in this case, that the Court has power to make a coercive order.  Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.

   Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing. 

   (Footnotes omitted)

2. Whether or not the order sought by the father is a coercive order, I accept that it is necessary to consider the available alternatives before making an order that the mother move to live in a place not of her choosing.

3. The father has not demonstrated that he cannot maintain his relationship with the child if the child remains in City A. I accept that it is more difficult for the father to spend time with the child when he lives in City A but the arrangements that were put in place by the Senior Registrar have been implemented to date and the mother has agreed to a number of requests by the father for extra time such that he has had five consecutive weekends of contact.

CONCLUSION

1. As the Family Consultant noted in January 2019:

   It appears that the primary dilemma in this matter is to weigh [the child’s] need to retain his relationship with his father, against the likely positive effect on [the mother’s] parenting capacity to remain physically distanced from [the father].

2. This is an interim decision. The substantive parenting matter will be heard and determined with the benefit of expert evidence about these complex issues.

3. The mother is and has been the child’s primary carer since his birth. In the contest between orders that will enable the father to have frequent and easy access to the child and orders that may endanger the mother’s mental health, or merely fail to support her health, I give the greatest weight to protection of the mother’s health.

EQUAL SHARED TIME/SUBSTANTIAL AND SIGNIFICANT TIME

1. Neither parent seeks an order for equal time.

2. While the child remains living in City A, substantial and significant time is difficult to achieve having regard to the practicalities of distance and travel.

MACHINERY PROVISIONS 

1. I am not persuaded that the regime which is in place is inappropriate or that the regime proposed by the father for changeovers, travel and ancillary matters is more able to meet the child’s best interests.

2. The Orders will be made in terms of the mother’s application.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 April 2019.

Associate:

Date: 29 April 2019