De Young and Krebig

FAMILY COURT OF AUSTRALIA

DE YOUNG & KREBIG

[2014] FamCA 700

FAMILY LAW – CHILDREN – RESIDENCE – best interests – where the child is 15 months old – where the child lives with the mother in Melbourne and the father seeks the return of the child to Sydney – where the child has little or no attachment to the father – consideration of best interests and reasonably practicability of relocation – consideration of the child’s development of meaningful relationships with the parents and with other relatives – orders made that the child remain in Melbourne with the mother.

Family Law Act 1975 (Cth) ss60CC, 65DAA

MRR v GRR (2010) 240 CLR 461
Sampson and Hartnett (No.10) 2007 FLC 93-350

APPLICANT:

Mr De Young

RESPONDENT:

Ms Krebig

FILE NUMBER:

SYC

2796

2013

DATE DELIVERED:

29 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

18, 19 and 20 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

SOLICITOR FOR THE RESPONDENT:

RT Legal Pty Ltd

Orders

IT IS ORDERED

That the parents have equal shared parental responsibility for the child L Krebig De Young (“the child”) born … 2013.
That the child live with the mother.
That, subject to these Orders, the father spend time with the child on any day (excepting Christmas Day) in Melbourne, as follows:
(a)For the purpose of this Order, if the father is staying in Melbourne rather than travelling from Sydney, his time with the child will commence at 10 am;
(b)For the purpose of this Order, the father shall give notice to the mother of the approximate time that he will arrive at the mother’s home to collect the child, by 4 pm on the Wednesday immediately before the weekend, if he intends to spend time with the child on a weekend day, and three days before he intends to spend time with the child if he intends to spend time with the child on a weekday and the time with the child shall commence when the father arrives at the mother’s home;
(c)From the date of these orders until the child is two years old, on each day that the father is in Melbourne from the time of his arrival at the mother’s home until 4 pm on that same day;
(d)From the time the child is two years old until the child is four years old, on each day that the father is in Melbourne from the time of his arrival at the mother’s home until 4 pm on that same day, with the time to be extended to 4 pm on the following day not more than once each week; and
(e)From the time the child is four years old until he starts school, on each day that the father is in Melbourne from the time of his arrival at the mother’s home until 6 pm on that same day, and on one occasion each week from Friday evening when the father arrives at the mother’s home (provided that the father arrives at the mother’s home no later than 9 pm) or from 10 am on Saturday morning until 6pm on Sunday.
That in addition to the time spent with the father in accordance with Order (3), from the time the child is four years old until he starts school, the father will spend time with the child on four non-consecutive occasions each year in Sydney, with each occasion to be of 7 days duration. For the purpose of compliance with this Order:
(a)The mother is to deliver the child to the father at Sydney airport not later than 12 noon on the first day and the father is to deliver the child to the mother at Melbourne or Avalon airport not later than 6 pm on the last day; and
(b)The father shall give the mother not less than one month’s notice of the days when he proposes to spend time with the child in Sydney and, at the father’s election, the time may include the Easter public holidays but not Christmas Day.
That the father shall not spend time with the child on Mother’s Day and on the Mother’s birthday.
That, from the time the child commences school, the operation of Orders 3 and 4 will be suspended during school holiday periods and the father will spend time with the child for one half of all school holiday periods in Melbourne or in Sydney, and, in the absence of agreement, for the first half of each holiday period in even numbered years and for the second half in odd numbered years.
That upon the child reaching the age of two years, the mother shall facilitate Skype contact between the child and the father on one occasion each week and one occasion each weekend that the father is not spending time with the child, for a period of not less than 30 minutes.
That on any occasion that the child spends time with the father in Sydney, the father shall facilitate Skype contact between the child and the mother on one weekday and one weekend day during the time.
That until the child starts school, the father shall be entitled, on his election, to spend time with the child in Melbourne on the day of the child’s birthday; on either Christmas Eve or 26 December and on either New Year’s Eve or New Year’s Day each year, the times and notice provisions to be in accordance with Order 3.
That each party keep the other informed of his or her residential address, telephone number and email address.
That the parties authorise the administrator of any day care facility, pre-school or school that the child attends to provide both parents with any information or documents commonly provided to parents. In the event that the facility declines to provide the information to both parents, then the parent receiving the information is to provide a copy of the relevant document to the other within 48 hours.
That both parents be entitled to attend at any occasion when parents attend at any day care facility, pre-school or school that the child attends.
That the mother provide the father with the name, address and contact details of the child’s general practitioner and authorise that practitioner to provide to the father any information he requests in relation to the child.
That each parent advise the other immediately if the child requires medical treatment.
That the child be baptised in the Greek Orthodox Church and that the father and any members of the paternal family may be present during the child’s baptism.
That the mother provide a stroller to the father for his use during his time with the child in Melbourne and that the father return the stroller to the mother at the end of each visit.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2796 of 2013

Mr De Young

Applicant

And

Ms Krebig

Respondent

REASONS FOR JUDGMENT

L Krebig De Young (“the child”) was born on in 2013. He is just 15 months old. His parents, Mr De Young (“the father”) and Ms Krebig (“the mother”), separated in May 2013 when the child was just two weeks old.
The child was born in Sydney where the mother and the father both lived together in a house owned by the father in Suburb T. When the parties separated, in circumstances which will be fully discussed later, the mother returned to Melbourne to live with her mother, Mrs K, and her mother’s partner, Mr C, in their home in X, which is an outer suburb of Melbourne.
Since the mother and the child returned to Melbourne, the father has spent time with the child, with one exception, in Melbourne, firstly in the home of Mr C, under the supervision of Mr C on five occasions. Thereafter, the father has been able to spend time with the child away from Mr C’s home and, on occasions, in the company of the paternal grandparents.
At the time when the matter came before the Court for hearing, it was the agreed position of the parties that the child had either no ability to recognise his father or barely recognised his father. It was also the agreed position that the child had little or no attachment to his father.
In the framework of those facts the matter came before the Court on the father’s application seeking orders that the mother return with the child to reside in Sydney.

THE COMPETING APPLICATIONS

The father sought orders that, upon the mother’s return to Sydney, he spend time with the child, initially for a period of five hours each day, three days per week; and, after three months, from 9 am to 5 pm on Sunday and for two periods of three hours each week. When the child turns three years of age the father sought time with him from 9 am to 5 pm on Saturday and Sunday of each alternate weekend as well as for two periods of three hours each week. Upon the child turning four years of age, the father proposed that his weekend time would include an overnight period and that there should be two additional periods of four hours each week.
The father’s proposal ultimately transitioned to week about time for the child with each parent.
The father also sought an order that:
in the event that the Court orders [the child] to return to live in Sydney and the mother indicates an intention to remain residing in Melbourne, then [the child] shall live with the father and spend time with the mother…
For the purpose of these proceedings, that application will be treated as an application for orders that the child live with the father in Sydney if the mother remains living in Melbourne.
The father’s alternate position, in the event that the child is to continue to reside in Melbourne with the mother, was that he would spend time with the child every third weekend in Melbourne from 10 am on Saturday to 5 pm on Sunday and that he would also spend time with the child for one week periods in Sydney on a minimum of four occasions each year. The father sought ancillary orders which it is not necessary to detail.
The orders sought by the mother changed throughout the hearing. Initially it was her position that, no matter what orders the Court made, she would not return to Sydney. That position was made clear on the first day of the Less Adversarial Trial.
At the commencement of the hearing on 18 August 2014, a Minute of Orders was tendered on behalf of the mother. The mother’s primary position then was that she would remain in Melbourne with the child and that the father would spend time with the child every second weekend from 11 am on Saturday until 3 pm on Sunday and that once the child commenced school he would spend half of each school holidays with the father.
The mother in that Minute of Orders, for the first time, sought the following order:
If the Court orders [the child] to move to Sydney the mother will move to Sydney to live with [the child].
At the commencement of submissions the mother tendered a further Minute of Orders which proposed that the child remain in Melbourne with her and spend time with the father in Melbourne each alternate weekend on Saturday from 11 am until 4 pm and on Sunday from 10 am until 3 pm for a period of six months and thereafter from Saturday 11 am until Sunday 4 pm until the child reaches the age of five years. In this amended Minute of Orders the mother maintained the position that if the Court ordered the child to relocate to Sydney she would move to Sydney and live with him.

THE EVIDENCE

The father relied on affidavits by himself and his father. The paternal grandfather was not required for cross-examination.
The mother relied on affidavits by herself, her mother and Mr C.
The Court was assisted by a Family Report prepared by Ms R, a Family Consultant at the Family Court of Australia, Melbourne Registry, and by evidence from a single expert psychiatrist, Dr N, who prepared a report.

IS THE FATHER’S PROPOSAL REASONABLY PRACTICABLE?

It is not in dispute that the Family Court of Australia has power to order a parent to relocate with a child. In Sampson and Hartnett (No.10) 2007 FLC 93-350 (“Sampson and Hartnett (No.10)”), the Full Court said at Paragraph 33:
In our view, there is nothing in the authorities that establishes that there is no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power.
It is equally clear, both from the judgment of the plurality in Sampson and Hartnett (No.10) and from the judgment of the High Court in MRR v GRR (2010) 240 CLR 461 that, in considering whether or not to make an order which requires a parent to move his or her place of residence, there must be an assessment of whether the arrangements proposed are reasonably practicable.
The mother’s present circumstances are that she lives in Melbourne in the house owned by Mr C. She does not make any contribution to rent but purchases some groceries.
She has the use of her mother’s car, owned by Mr C, and contributes $20 or $30 per week towards petrol.
She makes no contribution towards the cost of utilities such as water, electricity and gas.
She is in receipt of Centrelink benefits of approximately $550 per week and uses the whole of her income to pay her own expenses and the child’s expenses.
The mother gave evidence that most weeks her mother and Mr C buy milk for the child and give her money for cigarettes. It was her evidence that in the event that she is short of money her mother and Mr C assist.
It is the father’s proposal that, in the event that the mother is ordered to return with the child to Sydney, he will pay, for a period of two years from the date of her return to Sydney, up to $400 per week by way of rent for an apartment in which she would reside within 20 kilometres of the home in which he lives. The notation to the orders sought by the father reads:
A.In accordance with Order 2 sought by the Applicant Father, it is noted that the father will pay the mother’s rent up to the amount of $400 per week for a period of 2 years, such sum to be paid directly to the nominated real estate agent and the mother’s return to Sydney is subject and conditional upon the father’s compliance with this notation. It is noted that the father intends to apply for a bank guarantee which may be used in the event that the father fails to pay the mother’s rental.
The father in his oral evidence said that he would be responsible for the payment of a bond to secure rental accommodation for the mother.
The father estimated that the mother’s costs of relocating to Sydney would be between $5,000 and $10,000 and he proposed that she should be responsible for those expenses.
It was the father’s evidence that at the expiration of the two year period the mother should become responsible for the payment of her rent. Although he said that if the mother were not working at the expiration of two years he would probably assist her financially, it was his expectation that the mother would get a job and be able to earn enough money to pay her own rent in Sydney.
The father agreed that if the mother were to relocate to Sydney she would need to purchase household furniture, white goods and kitchenware. When asked how the mother was expected to finance those purchases, the father replied that she would presumably finance those purchases in the same way that she is currently paying her legal fees.
Counsel for the mother told the Court that the mother was not in receipt of a grant of legal aid and ultimately tendered a costs notification which indicated that the mother had not been charged legal fees up to 18 August 2014 and that a total of $13,560 had been paid for hearing fees and Counsel’s fees for the hearing. The mother in her oral evidence said that her mother had paid money for Counsel’s fees.
There was no suggestion in the father’s case that he would make any contribution either to the costs of relocation or to the costs of the mother setting up her household in Sydney.
The father was cross-examined in relation to his current financial circumstances. It was his evidence that he currently draws from the business, of which he is the sole owner, $55,000 per annum before tax, leaving a net income per annum of between $41,000 and $42,000 per annum. If his net income were $42,000 per annum that would be the equivalent of approximately $808 in net wages per week.
The father gave evidence that the mortgage payments on the home in which he lives are $450 per week and those mortgage payments are paid out of his income. In addition he spends between $80 and $100 per week on food and between $40 and $50 per week on cigarettes. He spends approximately $10 per week on entertainment for himself. Those expenses, adopting the averages where a range was given, amount to approximately $600 per week.
When those figures were put to the husband and it was suggested to him that he was not in a financial position to pay $400 per week by way of rent for the mother, he told the Court that he would draw the $400 per week out of his business. He explained that his wages fluctuated, depending upon the income of the business, and that he would treat the $400 per week as a director’s loan.
There was no evidence of the financial position of the father’s business which trades through a company. The company’s bank statements, profit and loss statements and tax returns were not tendered. There is no evidence which establishes that the company has the cash flow to support an additional payment of $400 per week to the husband for the next two years.
It was the father’s evidence that when the business is doing well he pays himself a lump sum and when the business is not doing well he draws less by way of wages. However, it remains his evidence that the maximum amount which he currently draws each year from the business is insufficient to allow him to pay $400 per week rent for the mother.
There was no evidence before the Court of the source of the monies for a bond, presumably four weeks rental, or whether the father was in a position to pay a bond. However, his evidence that he would pay the bond was unchallenged.
Whilst it was the father’s evidence, and the subject of the notation of his Minute of Orders, that he intended to apply for a bank guarantee that could be used in relation to the mother’s rent, no such facility had been put in place when the matter came for hearing.
I cannot conclude based on the evidence of the father that he is financially in a position to pay $400 per week rent for the mother for two years.
In relation to the mother’s position, if she were to live in Sydney, she would, in addition to rent, have to pay for utilities and she would not have the use of the car which is currently provided by Mr C.
If the mother were living in Sydney and the father paid rent of $400 per week it is not possible to know what income the mother would have from Centrelink. The mother gave evidence that she had made inquiries of Centrelink and was told that her benefit would be affected if the father paid $400 per week rent. It was her evidence that she was told that she would have to make a formal application when her situation was known and then an assessment would be made about what benefits she would receive. It was her evidence that she anticipated that, whatever the outcome of that formal application, her Centrelink benefits would be reduced.
I am unable to make a determination about what money might be available to the mother from Centrelink in the event that she were living in Sydney in an apartment for which the father paid the rent. I can safely assume that she would be receiving no more money than the $550 per week she currently receives living with her parents and that, in addition to the expenses which she has now, she would have to pay for utilities and also pay for the whole of the food which was needed for herself and the child.
I am not satisfied that, despite his willingness to do so, the father is able to pay consistently the sum of $400 per week by way of rent for the mother.

I am satisfied that in the event that the mother were to live in Sydney her income would be no more than that which she currently receives.
I am satisfied that the mother’s expenses, were she to live in Sydney, would exceed those which she currently pays.
There is no evidence that, without financial assistance from her mother and Mr C, the mother is able to afford the costs of relocation or the costs of furnishing a home in Sydney.
When the two year period during which the father will contribute to the mother’s rent is over, the mother will be faced with uncertainty. If she cannot find both suitable employment and affordable child care, how will she be able to remain in Sydney and where will she be able to afford to live?
I am unable to find that it is financially practicable for the mother to relocate to Sydney.
The impracticability of the father’s proposal is further demonstrated by his evidence in relation to his inability to afford the cost of visiting the child in Melbourne on a fortnightly basis. The father gave evidence that he could only manage the cost of visiting the child in Melbourne every three weeks and his application is that he will continue, if the child remains in Melbourne, to visit on three weekly intervals.
The father estimated that the cost of each visit to Melbourne, including parking his car in the long term car park at the Sydney airport, was $942 per visit.
Setting aside the challenge to the father’s claimed expenses which would seem on their face to be somewhat excessive, it was the father’s clear evidence that he was unable to afford $942 a fortnight or $471 per week. He can, according to his evidence, afford to pay for the visits once every three weeks at a cost, on his evidence, of $314 per week. It is self-evident that if the father can only afford to pay $314 per week to visit the child in Melbourne he will have difficulty paying $400 per week for the mother’s rent in Sydney.
Having come to the view that the father has not been able to demonstrate that the proposal which he makes for the mother to relocate to Sydney is financially practicable, it is not necessary to consider whether it would be practicable in emotional terms for the mother to reside in Sydney away from her own family supports, particularly that of her mother and Mr C. However, that issue is important and will be considered later in these reasons.
The father has considered relocating to Melbourne to be near the child, but has come to the conclusion that he is unable to do so.
It was the father’s unchallenged evidence that his business relies heavily on reputation, word of mouth referrals and contacts which he has established. The business specialises in property remediation. The business engages in remediation of properties in the Eastern and Northern suburbs of the Sydney Metropolitan Area and the business has been built up by the father since 2006. It was his unchallenged evidence that it has taken him several years to develop the network of contacts and his reputation within the industry.
I accept that it is not reasonable, or reasonably practicable, for the father to move to Melbourne.

THE CHILD’S BEST INTERESTS

If the mother is to remain in Melbourne and the father is to remain in Sydney, what arrangements should be made in relation to the child and his future?
Each of the parties seeks an order that they should have equal shared parental responsibility in relation to the child.
Pursuant to s65DAA of the Family Law Act 1975 (Cth), where a parenting order provides that the parents are to have equal shared responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether equal time would be reasonably practicable. Having regard to the fact that the parents will not live in the same city, it is not in the child’s best interests, nor is it reasonably practicable, for them to share his care equally, even if that were appropriate, given his young age and the nature of his attachment to his father of which more will be said later in these reasons.
In determining what arrangements are in the child’s best interests it was the evidence of both the father and the mother that it was in the child’s interests to have a meaningful relationship with both of his parents. That is not however, the only matter which is to be taken into consideration.
Although the benefit to the child of having a meaningful relationship with his father is a primary consideration, it is not the only consideration and must be weighed against the additional considerations set out in section 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).

MATTERS TO BE CONSIDERED UNDER SECTION 60CC(3) OF THE ACT

Views expressed by the child

The child is 15 months of age and has, unsurprisingly, not expressed any views.

The nature of the child’s relationships

In relation to the father, it is common ground that the child either does not recognise his father or barely recognises him. The parents separated when the child was only two weeks old, in May 2013. The father did not then see the child until 23 June 2013.
He next spent time with the child on 3 and 4 August 2013 and 17 and 18 August 2013.
He did not then see the child until 20 December 2013 when he spent time with the child on four consecutive days.
After the December visits he saw the child again on 17 March 2014 for two hours after the matter had been mentioned in the Family Court of Australia in Sydney and then on 19 April, 4 May, 18 May, 1 June, 15 June and 29 June 2014.
The first visit was professionally supervised. The next five visits that the father had with the child were supervised by Mr C and the mother was present. Those visits were for a period of hours only.
The later visits proceeded without supervision and the father was able to take the child away from the mother’s home but those visits were for no more than four hours on each occasion.
The father subsequently continued fortnightly visits but again for a period of no more than four hours.
It is common ground between the parties that the visits which have been undertaken by the father have not been sufficient to allow any attachment to form between the child and his father.
In the Family Report which was released on 13 September 2013 when the child was four months old, Ms R, Family Consultant, recommended that the child spend time with his father on four occasions each week for one hour on each occasion, that time increasing after six weeks to two hours on four occasions each week. When the child reached 12 months of age, Ms R recommended that he spend time with his father for five hours on three occasions each week.
The nature of the child’s relationships with his parents and other significant adults, particularly his maternal grandmother and Mr C, also requires some examination.
Since his birth, the child has primarily lived in the care of his mother and his maternal grandmother in the house of Mr C.
The mother gave evidence, unchallenged, that the child has a great affection for Mr C and a very good relationship with him.
There has been no recent assessment of this family and there is no expert evidence before the Court to assist with the determination of where the child’s primary attachment lies. It might be assumed that, given that he has lived with his mother since birth, his primary attachment would be to her. However, there is also evidence which suggests that the child’s primary attachment may be to his maternal grandmother. The mother in her affidavit said “[The child] is very spoilt by my mother, and at night time, when he wakes up, he just wants to be held by my mother.” On the mother’s evidence there is a very close relationship between the child and his maternal grandmother.
Absent expert evidence, it is assumed that the child’s primary attachments are to his mother or his maternal grandmother, or to both of them.

The extent to which the parents have been involved with the child

Each of the parties levels criticisms against the other about the extent to which they have facilitated, or failed to facilitate, the other parent’s participating in decision making and spending time with the child.
The mother is criticised by the father for failing to do anything which would allow the child to spend time with him in the time since the parties separated and the hearing.
In cross-examination it was the mother’s evidence that, after she arrived in Melbourne, she sent text messages to the father saying that he could see the child.
The parents were unable to reach agreement because the father did not want to see the child in the home of the maternal grandmother and the mother was not prepared to take the child outside the house. Having regard to the circumstances of the separation and the part which the maternal grandmother played on that occasion, it was not unreasonable for the father to wish to see the child away from the maternal grandmother.
The mother gave evidence that, in her religious tradition, a baby was kept inside the house for forty days after birth and gave that as an excuse for not arranging to meet the father in a place where he would feel comfortable, such as a shopping centre.
Given that the mother had not been constrained by her religion from taking the child out of the house in May 2014, when he was two weeks old, and taking him to Melbourne, I do not accept that there was a reasonable excuse for her not facilitating time between the father and the child.
There was one occasion when the parties were able to agree that the father could spend time with the child under the supervision of a professional agency. The mother said that because she did not hear anything from the father after that occasion she assumed that he was not interested in spending time with the child.
The father filed an application in the Family Court of Australia which came before the Court on 14 June 2013 but was not reached. The matter was ultimately heard on 27 June 2013 when orders were made for the father to spend time with the child, failing agreement, each Sunday between 1 pm and 2 pm in Melbourne. Those orders were varied, to extend the time, on 14 November 2013 and the time was extended and again on 7 April 2014.
The mother brought the child with her when the matter was before the Court in Sydney on 17 March 2014, and the father was able to spend two hours with him on that occasion, but on no other occasion has the mother done anything to facilitate the child seeing his father in Sydney.
It was the mother’s view that she allowed the father to come and see the child whenever he requested and she did not appear to consider that anything further was required of her.
The father is criticised by the mother for not visiting the child with sufficient frequency.
The timetable of the father’s visits has been set out above. The father relies upon the fact that on 4 December 2013 he injured his foot and tore his Achilles tendon. That does not explain his failure to visit the child for the period from 19 August 2013 to 20 December 2013, or his failure to visit for the period from 24 December 2013 to 16 March 2014.
I am satisfied that from 17 March 2014 the father regularly spent time with the child in accordance with the orders of the Court.
The father gave evidence that his failure to spend time with the child was largely due to his financial circumstances and the cost of travelling to Melbourne. The cross-examination of the father in relation to that issue suggested that the costs asserted by the father were inflated.
I do not accept that it is necessary to pay $307 for a return flight from Sydney to Melbourne or that it is necessary to pay $217 per day for car hire or $273 for overnight accommodation. There was nothing which prevented the father from flying to Melbourne in the morning and flying home in the afternoon on occasions when he was only seeing the child for a number of hours. Nothing in the father’s evidence suggested that he had attempted to find cheap flights, last minute accommodation or cheaper car hire.
The evidence does not establish that the father was prevented from travelling to Melbourne with appropriate frequency by financial constraints.

The extent to which the father has maintained the child

The mother is critical of what she asserts to be the father’s failure to pay child support for the child. That criticism is somewhat disingenuous having regard to the circumstances.
After the interim hearing on 27 June 2013, when the father accepted that the mother did not intend to return to Sydney, he contacted the Child Support Agency and inquired about making arrangements to pay child support.
The father was told that he would not be able to register as a payer because there was no birth certificate available for the child.
The father then used the Child Support Agency’s online estimator and calculated that the amount of child support which he would be required to pay, on the basis of an income of $55,000 per year for him, and nothing for the mother, with the child in the care of the mother for 100% of the time, would be $106 per week.
The father then asked his solicitors to write to the mother’s solicitors confirming that he had tried to register with the Child Support Agency but had not been able to do so because the child’s birth had not been registered. The father also asked for confirmation that the mother was in receipt of Centrelink benefits and advised the mother’s solicitors that he was proposing to pay $213 per fortnight to the mother until such time as a Child Support assessment was issued.
On 27 June 2013 the father signed the forms required to register the birth certificate and handed those forms to the mother’s Counsel.
On 2 July 2013 the mother’s solicitors wrote to the father’s solicitors indicating that the mother had no income and was unable to apply for a Centrelink benefit because the child’s birth had not been registered.
On 3 July 2013 the father transferred $213 to the mother’s bank account.
On 17 July 2013 the father paid $170 to the mother’s account.
On 18 July 2013 the father caused his solicitors to write to the mother’s solicitors inquiring whether or not the mother had applied to the Child Support Agency for an assessment.
By letter dated 19 July 2013 the mother’s solicitors confirmed that the mother was in the process of making an application to the Child Support Agency.
By letter dated 23 July 2013, the mother’s solicitors advised the father’s solicitors:
In relation to the Child Support Agency, our client has now received an exemption for paying child support because of the (1) Alleged domestic violence, and (2) your client has provided a lack of financial support to date.
On 1 August 2013 the father paid $170 into the mother’s account.
The father paid $170 on 14 August 2013.
A further letter was sent from the mother’s solicitors requesting that the father pay child support directly to the Child Support Agency rather than to the mother.
The father gives evidence that he was confused and contacted the Child Support Agency. On 17 September 2013, the Child Support Agency told the father that the mother had been granted an exemption from receiving child support from 8 August 2013. The father was told by the representative of the Child Support Agency that because of the grounds upon which the mother had received the exemption, there was nothing that the father could do to pay child support and that they were not permitted to accept his registration.
On 30 September 2013 the father paid $277.59 into the mother’s account.
The mother in her oral evidence said that the father had appealed against a decision to assess child support. She conceded ultimately that this was not correct and that the father had asked the Child Support Agency to take into account the cost of his visiting the child in Melbourne. She conceded that the Child Support Agency, having considered the father’s application, rejected it.
Following the rejection of the father’s application to the Child Support Agency, the father on a number of occasions requested that the mother provide him with details of an account into which he could deposit funds for the support of the child. The mother did not respond to those requests.
The mother in her affidavit is critical of the father for not contributing to the cost of an X-Ray which the child required. She says that the father replied to her request, saying “I can pay you regular child support and then you can use that money toward [the child’s] expenses as they arise, rather than asking me on one on one occasions”.
Ultimately the mother’s stated reason for refusing to accept Child Support was that she could not be certain that the father would pay regularly.
In about April 2014 the father opened a bank account into which he deposited a weekly amount. That account is now in the child’s name.
I do not accept the mother’s criticism of the father in relation to the payment of child support.

The effect on the child of his separation from significant adults

In support of her application, the mother relies heavily upon the likely detrimental effect upon the child of being separated from her and from the maternal grandmother and Mr C.
At the present time, the child sees his father for four hours each alternate weekend. It appears that he has little or no attachment to his father. If he continues to see his father no more frequently, he will suffer no short term effects. The long term effects are another matter. If the father is not able to spend enough time with the child for the child to form an attachment to him, then the child will have no meaningful relationship with his father. It is likely, as the mother says, that Mr C will become the child’s father figure.
If the child were separated from his mother and grandmother, the short term effects would be devastating for him. Along with Mr C, they are the only carers he has known. It could not be assumed that the father’s care could compensate the child for the loss of his mother, any more than the care of a stranger. This reality is implicitly conceded in the father’s case. Although he formally seeks an order that the child live with him, he gave no evidence of any concrete plan to care for the child. The father works full time in his own business. How he would provide appropriate care for a 15 month old child was unexplained.

Practical difficulties

The practical difficulties of the father maintaining his relationship with the child, having regard to the geographic realities of the respective residences of the parents, have already been discussed. The fact that the parents live in separate cities already has had an effect on the child’s right to maintain a personal relationship and direct contact with his father on a sufficiently regular basis.

The capacity of each of the parents to care for the child

The capacity of each of the parents to care for the child is problematic.
The father asks the Court to make an order that the child, a 15 month old child who appears to have no relationship or attachment to him, should, if all else fails, live with him. That he should suggest such an outcome, even as a last resort, gives rise to serious concerns about his ability to understand and appreciate the needs of this little boy.
The mother, throughout the hearing and until the commencement of submissions, maintained the position that the father should have fortnightly time with the child from Saturday morning until Sunday afternoon (including overnight) in circumstances where the child has never spent more than four hours in the care of his father and, on her evidence, does not recognise him. That she considers it appropriate that the child should spend two days and a night with a virtual stranger gives rise to an equally grave concern about her understanding of the needs of her child.
No doubt that arrangement would be in the best interests of the mother for the purpose of the proceedings, in that it carries the appearance of a willingness to foster the relationship between the child and his father, it is hard to understand how she might believe that it was in the child’s best interests.

Given the opportunity to explain her reasoning process, she was unable to do so, except to say that if the child were with his father for the weekend and the father was unable to settle him, then she (the mother) could pick him up. She went on to say that at the present time the child was having trouble sleeping and needed the maternal grandmother to settle him. This explanation seems at odds with the suggestion that it is appropriate and in the child’s interests to commence overnight time immediately with his father.
Further concerns about the mother’s ability to parent the child arise from her history. The father’s evidence about the mother’s emotional and psychological instability was not challenged.
The father deposed to a relationship in Melbourne in 2002 and 2003 where the mother was jealous, angry and aggressive. The relationship resumed in 2009 when the mother lived in Sydney with the father. The father relates instances where the mother threw a crystal ball at him; threw a candlestick at him, causing an injury sufficient to warrant his being taken to hospital; where she broke household items; where she harassed a former girlfriend of the father. The father describes the mother as prone to moodiness and having on one occasion, threatened to kill herself.
On 18 April 2009 the mother was admitted to hospital having taken an overdose of prescription medication. Medical notes record that the mother denied thoughts of self-harm on that occasion and the mother in cross-examination said that she became increasingly anxious during the day and took the medication progressively during the day in an effort to calm herself.
On 4 December 2009 the mother was admitted to hospital suffering from an overdose which she said was an attempted suicide. Notes produced by the hospital record that the mother had taken up to 50 Panadol tablets, up to 20 Nurofen tablets and drunk up to three bottles of Tequila. Those amounts are taken from both empty blister packs and empty bottles found by the father in the mother’s car.
The hospital notes relating to the admission record “Longstanding emotional instability” and that the mother had previously been treated for depression.
After the mother returned to Melbourne she consulted a psychiatrist on advice from her general practitioner. She was prescribed Lexapro which Dr N said was usually prescribed for depression, although having “some anti-anxiety features”. Dr N described the dosage reported by the mother as a “fairly high dose”.
The mother also commenced seeing a psychologist.
Dr N reported that the mother told him that she “did not feel she had any previous psychiatric problems”. She did not tell Dr N about either her treating psychiatrist but she did tell him that she suffered from anxiety attacks and that she had been seeing a psychologist weekly since May 2013.
Dr N observes in his report:
Her mental facilities were reasonable in thought, and content, but there was a tendency to lose concentration at times. There was no disorder of perception. Her judgement was influenced by her mood situation. There was some ongoing subjective distress, anhedonia, raised anxiety levels, and loss of confidence, and self-esteem. I gained the impression that she was someone who had a dependent personality type, particularly in relation to her mother…
Dr N expressed the opinion that the mother presented with a generalised Anxiety Disorder and indications of a dependent personality presentation. He said that the mother may experience problems in parenting the child in his teenage years if she remains overly dependent on her mother.
Dr N’s observations about the mother’s dependency on her mother were not challenged. The transcript of the events of 14 May 2013 and the presentation of the maternal grandmother in her oral evidence could leave no doubt that she is a forceful and vociferous person who will make her opinions known. She continued speaking forcefully after the cross-examination had concluded and was insistent on making her point.
The mother agreed in cross-examination that, as was the evidence from the transcript of 14 May 2013, it was the maternal grandmother who had determined that the mother and the child would return to Melbourne, not the mother herself.
Asked about the effect on the mother of being separated from her mother, Dr N said in oral evidence that if the mother moved to Sydney, she would be constantly pining for her mother. He said that while it would be beneficial for the mother in the long run to make a life for herself away from her mother, there exists the possibility that she will never be able to live independently.
There are real concerns about whether the mother has the capacity to provide optimum, or good enough, care for the child without the support of her mother and Mr C.

Family violence

On 12 June 2013 a Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4) was filed on behalf of the mother. In that document it was alleged under the heading “Describe any acts of omissions that you allege constitute abuse” the following:
1. That the Father, whilst holding the Child, [L], was yelling at the Mother; and
2. That when the Mother requested that the Child be given to her the Father shoved the baby in her Mother’s arms.
Under the heading “Describe the facts alleged to constitute any risk of abuse” the mother said:
1. That the Applicant Father picked up a plate and smashed this in the presence of the Respondent Mother and her mother.
2. That the Applicant Father threatened to slash the throat of the Respondent Mother.
Under the heading “Describe any acts or omissions that you allege constitute family violence” the mother wrote:
1.   That the Father has threatned (sic) to cut the Mother’s throat.
2.   The Mother and Father argued during the pregnancy.
3.   The Father has been controlling during the relationship.
4.   The Father saying to the Mother and her Mother “shut the fuck up”.
The affidavit of the mother, relied upon at trial, sworn on 4 July 2014 makes no reference to the allegations said to be allegations of violence and / or abuse.
The mother was cross-examined in relation to the allegation that the father had threatened to slash her throat.
The mother gave evidence that on 14 May 2014, the night before the mother and her mother left Sydney and travelled with the child to Melbourne, an argument arose after the father picked up the child from his bassinet. The father said that the child was awake and he thought the child was going to vomit and he therefore picked him up. The mother says that the child was asleep. Nothing turns on this.
The mother has given a number of inconsistent versions of this event. In an affidavit sworn by her on 10 June 2013, the mother says that on this occasion the father said to her “I am so fucking sick of you guys threatening me if you take [the child] away I will slash your throat.” Significantly the mother in that affidavit sworn less than a month after the event makes no mention of the father having a knife. Neither does she mention, as she later did, that the father was in the kitchen and she was not.
On 13 June 2013, the mother made a statement to police in support of an application for an Apprehended Domestic Violence Order (“ADVO”). The mother said at paragraph 11 “I then took [the child] and saw [the father] start to pace up and down in the kitchen area. [The father] then stood at the sink of the kitchen, turned around to look at me and said ‘If you take [the child] away, I’ll slash your throat.’” Again the mother made no mention of the father being in possession of a knife.
The application for the ADVO was heard in the local court. Constable B gave evidence that he asked the mother if the father had threatened to cut her throat and she replied in words to the effect that the father spoke over her but that he did not say anything about cutting her throat. The mother signed a note in the Constable’s notebook to that effect.
In the proceedings in the local court the learned Magistrate did not accept that the father had made the threat as the mother alleged.
In cross-examination in these proceedings, the mother said in answer to questions asked by learned Counsel for the father, that the father, in the course of the argument on 14 May 2013, “Grabbed a knife” (I infer that the mother was referring to his table knife as the father was in the course of eating dinner) and threw it in the sink and then said to her that he was going to slash her throat.
Dr N, in his report dated 24 February 2014, records the history given by the mother in the following terms “She indicated that she, and [the father], had an altercation, and the Police became involved. [The father] grabbed a knife, and had evidently threatened to slash her throat.” Dr N was not cross-examined in relation to that evidence.
Dr N also notes in his report “[The mother] claims that he hit her on the jaw on one occasion, and actually held a knife to her throat, and threatened to slash it.” Dr N was not cross-examined in relation to that statement. In no other account had the mother alleged that the father held a knife to her throat.
At some point after the argument commenced on 14 May 2013, the father began to record the event. A transcript of his recording, of some seven and half pages, is annexed to his affidavit and was read without objection. In the whole of those seven and half pages no mention is made by the mother or her mother, who was also present and a voluble participant, of any threat having been made by the father towards the mother.
The recording is redolent with the mother’s attempts to prevent the maternal grandmother from interfering in the argument and escalating the dispute. On many occasions the mother attempts to prevent the maternal grandmother from speaking and begs her to moderate her language. At one point the mother telephoned her sister and said to her sister “Hey, can you talk to mum the baby is crying and she’s screaming at everyone.”
In the context of the father saying to the mother that the maternal grandmother had threatened to remove the child from the home and take him back to Melbourne, the mother did not respond with words to the effect that the father had, in his turn threatened her.
There are numerous instances in the transcript where, had such a threat been made, it was likely the threat would have been mentioned.
I do not accept the mother’s evidence that the father threatened her as alleged.
However, I do accept the unchallenged evidence of Dr N who took a history from both the parents, that the relationship between them was toxic.

CONCLUSION

Having concluded that it is not practicable for the mother to move to Sydney, I am confronted with two untenable alternatives.
If the child stays in Melbourne with his mother, he will not develop a meaningful relationship with his father unless the father is prepared to make a much greater effort, to be involved in the child’s life, than he has done thus far.
If the child lives with his father in Sydney he will be deprived of the only meaningful relationships he has, being those with his mother, his maternal grandmother and Mr C, and will be left in the care of his father to whom he has little or no attachment.
If the child were to live in Sydney and saw his mother occasionally, or even fortnightly, that would not be a sufficient amount of time with her to ensure that their present relationship could be maintained.
There is no evidence before me of the effect that would have on the child, either in the short term or in his later life but, absent evidence that he will be unaffected by such a change, that is not a risk to which I am prepared to expose him.
Weighing the two options, I conclude that there is likely to be less harm to the child from a failure to develop a meaningful relationship with his father than from a removal of all those adults with whom he already has a meaningful relationship and the likely, consequent, loss of those relationships.
Everything that can be done to facilitate the father’s spending the maximum possible time with the child and to develop a meaningful relationship with the child should be done and, for that reason, the Orders will provide for the father to spend time with the child in Melbourne on any occasion that he can be available.
This may create some inconvenience to the mother but the child’s best interests require it.

ANCILLARY MATTERS

Each party sought a raft of ancillary orders. With the exception of the issue of the child’s baptism, there was no evidence to inform the Court of the determination of what ancillary orders should be made and no submissions were directed to those matters.
The father gave evidence that he agrees to the child’s being baptised in either the Catholic or Greek Orthodox tradition. The mother prefers that the child be baptised in the Greek Orthodox Church and the orders will provide for that to happen and for the father and the paternal family to be present if they wish.
In relation to the other ancillary matters, I can do no more than make such orders as seem objectively reasonable. The parents each ask the Court to make different orders in relation to Christmas, Easter and New Year but neither led evidence in relation to those proposals. Since each sought that the child spend half school holidays with each parent, the Orders will provide that once the child starts school, those special days will fall in accordance with the holiday arrangements.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 August 2014.

Associate:

Date: 29 August 2014

[2014] FamCA 700

29 August 2014

Key Legal Topics

Areas of Law

Family Law