DE YOUNG & KREBIG

FAMILY COURT OF AUSTRALIA

DE YOUNG & KREBIG

[2013] FamCA 535

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – BEST INTERESTS – INTERSTATE RELOCATION – Where the subject child is eight weeks old – Where the child was born in Sydney but now lives with the mother in Melbourne – Where the father seeks that the mother return with the child to live in Sydney – Whether the Court should order that the mother relocate with the child to Sydney – Whether and on what basis the father should have contact with the child in Melbourne or in Sydney
FAMILY LAW – INTERIM PROCEEDINGS – FAMILY VIOLENCE – Where there are untested allegations of family violence perpetrated by the father against the mother – Where there is an interim family violence order in place for the protection of the mother – Whether there is an unacceptable risk that the child may be exposed to family violence if the mother were ordered to return to Sydney with the child

Family Law Act 1975 (Cth)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Surveillance Devices Act 2007 (NSW)

APPLICANT:

Mr De Young

RESPONDENT:

Ms Krebig

FILE NUMBER:

SYC

2977

2013

DATE DELIVERED:

18 July 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

27 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan

COUNSEL FOR THE RESPONDENT:

Mr Stenhouse

SOLICITOR FOR THE RESPONDENT:

RT Legal

Pending further order the child L, born … 2013 (“the child”) shall live with Ms Krebig (“the mother”) and spend such time with Mr De Young (“the father”) as the parties may agree. In the absence of such agreement the father is to spend one hour per week with the child from 1.00 pm until 2.00 pm each Sunday at the mother’s residence in Melbourne.
The matter is to be re-listed before a duty Judge upon the obtaining of the Family Report referred to hereafter for further consideration and the hearing is adjourned to that date.
Pursuant to section 62G of the Family Law Act 1975 a Family Consultant nominated by the Manager, Child Dispute Services, Melbourne Registry prepare a report on matters relating to the care, welfare and development of the child:
·L born … 2013
The parties must attend all appointments fixed by the Family Consultant and ensure that the child attends all appointments as notified by the Family Consultant.
The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer in this matter.
In preparing the report the Family Consultant is directed to consider:
(a)the benefit to the child of having a meaningful relationship with both parents.
(b)whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
(c) other considerations, including:
(i)the nature of the child’s relationship with each parent and other relevant persons
(ii)the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
(iii)the likely effects of any changes in the child’s circumstances
(iv)any practical difficulties and expense of proposed parenting arrangements
(v)the capacity of parents or relevant others to provide for the needs of the child
(vi)the maturity, sex, lifestyle, background (including lifestyle, culture and traditions) of the parents
(vii)the attitude to the child, and to the responsibilities of parenthood demonstrated by each parent
(viii)any family violence involving the child or a member of the child’s family
(ix)the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, including participating in long term decisions about the child, spending time and communicating with the child.
(x)the extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in long term decisions about the child, spending time and communicating with the child.
(xi)the extent to which each parent has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(d)any other matters that relate to the care, welfare and development of the child and, in particular, and without limiting the generality of the foregoing:
(i)the mental health of each of the parties.
(ii)the effect on the child of spending time with each parent having regard to each parent’s current and future capacity to:
A.implement such an arrangement
B.communicate with each other and resolve difficulties that might arise
(iii)the effect on the child/father relationship and the child of the child having limited contact with the father
(iv)the need or otherwise of any time spent with the father to be supervised.
The Court requests that the preparation of the Family Report be given such priority as can reasonably be afforded it.
The costs of procuring the Family Report, including the costs of the father’s travel to Melbourne for the purpose of attending upon the Family Consultant, are to be paid by the father, with the trial Judge to determine at the final hearing whether the mother should be ordered to reimburse the father for any or all of those costs

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

FILE NUMBER: SYC 2977 of 2013

Mr De Young

Applicant

And

Ms Krebig

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are interim parenting proceedings between Mr De Young (“the father”) and Ms Krebig (“the mother”) with respect to their child L, born in 2013 (“the child”).
At the time of the interim hearing the child was just under two months’ old.
The proceedings were initiated by the father by way of his Application in a Case filed on 23 May 2013 in which the father sought orders that the mother return with the child from Melbourne, where she has lived with her mother since separation, to the house where she formerly lived with the father in Suburb T, Sydney (“the Suburb T residence”).
As evidenced by a Minute of Order attached to the father’s case outline document, the father now seeks that pending further order the mother have the exclusive occupation of the Suburb T property upon her return to Sydney with the child. In the event that the mother elects not to reside at the Suburb T residence, the father proposes that he arrange for her the provision of rented accommodation in Sydney up to a value of $450.00 per week.
The father’s Minute of Order also sets forth orders sought by the father that the child live with the mother and initially spend time with the father as follows:
a)until the child is four months old – on a daily basis for one hour a day until the child is four months of age and
b)from when the child is four months old – on a daily basis for one and a half hours per day.
The father also seeks that a single expert be appointed pursuant to Chapter 15 of the Family Law Rules 2004 to prepare a Family Report in the proceedings. It is proposed by the father that the Family Report cover, inter alia, the mental health of each of the parties. The father proposes that the parties share equally in the costs of procuring the Family Report.
The mother seeks that the father’s application be dismissed and that the child live with her. She proposes that the child spend time with the father during such periods as are agreed between the parties and, in the absence of any agreement, for one hour per week on Sundays at her residence.
The mother also seeks an order that the child’s time with the father be supervised by either her biological father or by Mr C (the maternal grandmother’s partner), whomever the father shall nominate. In addition, the mother seeks an order that the father be responsible for the cost of all travel to and from Melbourne for the purpose of spending time with the child, together with an order that the proceedings be transferred to the Melbourne Registry of the Family Court of Australia.

Background Facts

The father was born in 1978 and is 34 years old.
The mother was born in 1981 and is 31 years old.
It appears that the parties were in a relationship for around four years prior to the recent separation event, which was the mother’s relocation to Melbourne. They cohabitated it seems for most of that time. It also appears that the parties were in a relationship at an earlier time, between around 2002 and 2004. The Court notes that the evidence of the parties in relation to the commencement and end dates of their relationship is inconsistent and untested.
In 2013, the child was born.
On 14 May 2013 there was an incident at the Suburb T residence in Sydney. The incident involved the mother, the father, the child’s maternal grandmother Ms K (“the maternal grandmother”), and the mother’s sister

Ms D, (“the mother’s sister”). Police attended the residence and the father was taken to Suburb E Police Station. Upon arriving at the police station, the father was served with an ex parte provisional Apprehended Domestic Violence Order (“ADVO”) granted against him for the protection of the mother. The father has informed the Court that the proceedings for a final ADVO will be defended by him.
On 15 May 2013, the day following the granting of the provisional ADVO, the mother and the child travelled to Melbourne with the maternal grandmother. They have remained there since.
On 22 May 2013, the father filed an Initiating Application seeking that the mother and the child be ordered to return to Sydney. The following day, the father filed an Application in a Case seeking that interim orders be made.
Since the mother’s relocation to Melbourne with the child, the father has seen the child on one occasion, that being on 23 June 2013 for approximately three hours. The father’s time with the child was supervised by a representative from a professional supervision agency.

The Issues

The father in his Case Outline Document listed the issues in these proceedings, as perceived by him, in the following terms:
·The effect upon the father’s relationship with [the child] should he remain in Melbourne
·Allegations of violence made by the mother against the father
·Allegations of violence made by the father against the mother
·The involvement of each of the parties (and the maternal grandmother and the mother’s sister) in the dispute of the 14 May and what each party is alleged to have said at the time
·Whether the father and/or the mother have anger management issues
·The stability of the mother’s current circumstances in Melbourne given the volatile relationship she has with her family

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”).
In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA).
In determining what is in the child’s best interests, I must consider certain matters under section 60CC of the Act. Those matters are the “primary considerations” set out in subsection 60CC(2) and the “additional considerations” set out in subsection 60CC(3).
The Court notes that, as these proceedings were initiated in May 2013, the amendments to the Act introduced by the passing of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), and in particular the amendments to section 60CC, are applicable to these proceedings.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B of the Act which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

I now set out the primary considerations that I must consider and note that, in applying these considerations, I will pursuant to subsection 60CC(2A) of the Act give greater weight to the primary consideration set out under subheading (b) below.

(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

It is appropriate that, if no harm is done to a child by so doing, this child should have a meaningful relationship with each of his parents.
It is the father’s assertion that the benefit of the child having a meaningful relationship with him would be put in jeopardy if the Court were to make orders in line with the limited nature of the contact proposed by the mother.
The mother asserts that an alteration to the present situation would put her and the child in some danger, or at least perceived danger, by virtue of what she asserts is the violent nature of the father.
The father denies that his nature is violent but at the same time indicates his willingness to undergo anger management courses should that be a

pre-condition for the child’s return to Sydney. The Court is told that the mother previously sought that the father attend an anger management course and obtain counselling before she would consider returning to Sydney, however, she has since withdrawn that proposal and is now unwilling to return to Sydney.

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

On the allegations made in this matter, this child is, in the mother’s view, likely to be subject to harm at the hands of the father by any or all of the following:
a)the father being violent to the mother in a physical sense
b)the father being violent to the mother by seeking to control her actions and depriving her of her freedom
c)the father controlling the mother by the granting or withholding of the mother’s financial independence
d)the father’s conduct or perceived likely conduct causing her anxiety which may be communicated to the child and
e)the father controlling the mother and making her dependent on him by removing her support group, consisting of the mother and her sister.
The father, on the other hand, in his evidence, paints a picture of a child born at a time when the mother was emotionally troubled to say the least. There was, the father asserts, talk by the mother of having an abortion and of a hope the child might die.
The father also says that the mother at one point informed him via a private Facebook message that she was going to visit a special clinic which performs later term abortions. The father says that the mother regularly made comments during the pregnancy that she would procure an abortion.
According to the father, during the pregnancy the mother would threaten to leave him and go to Melbourne. It is asserted by the father that she posted messages on Facebook visible to others to the effect that she hated living in Sydney and wanted to leave, and that the father did not help her with anything.
The father says that the mother was of mercurial mood both before and during the pregnancy and that she moved “from angry to happy to upset within the space of minutes”. He asserts that she would snap at him, threaten to stab and poison him, and threaten him with infidelity. The father notes that the mother would often apologise after making dramatic statements while in an upset state.
During their cohabitation, the father says that the mother’s mood swings were so bad that the parties separated for a time. He further asserts that the mother’s moods were on occasion accompanied by physical violence. He claims that the mother “would pinch me, slap at me or scratch me” and that she “would throw things in the house, such as her mobile phone or a remote control.”
Notwithstanding the above, the father’s perception was that, although during the pregnancy the parties had arguments, they moved past their arguments as quickly as they arose.
According to the father, discord arose following the birth of the child with complaints by the mother that the father was not home from work often enough, leaving the maternal grandmother to provide all the necessary help.
The father asserts that the relationship between himself and the maternal grandmother, who he says made constant threats to take the mother and the child away to Melbourne and “my daughter away from you”, deteriorated.
The father reports that the mother’s behaviour in hospital, in apparently seeming unhappy about the birth of the child, caused him to consult a social worker who, he says, advised them to seek relationship counselling and observed that the mother also needs to see someone herself.
Following the birth of the child, disputes occurred at the hospital and are severally reported. Disputes also arose following the mother’s discharge from hospital, which disputes the father sees as attempts by the mother to exclude the father from the child’s life.
In addition, it is suggested that reports were made by the maternal grandmother to the mother’s sister that the father had made threats of physical violence to the mother. The father says that no such threats were made; however, the police intervened and procured the making of a provisional ex parte ADVO.
With respect to the provisional ADVO, the father asserts that the mother’s sister, who is a criminal lawyer, contacted the police at the time of the incident on 14 May 2013 and advised the police that the father had threatened to slit the mother’s throat.
The father also asserts that he was informed by police while he was at the station that the mother and the maternal grandmother did not want to provide witness statements. Whether or not that information is accurate, the mother did provide a witness statement to the police on 13 June 2013, which is annexed to the mother’s affidavit filed on 4 June 2013.
The day following the incident on 14 May 2013, the mother in company of the maternal grandmother left the Suburb T residence and went to Melbourne. Thereafter the father says that he spoke with the mother on a number of occasions and asked her about returning to Sydney. The father says that he received varying responses from the mother, such as “I’ll be back in two weeks”, “I’m not coming back” and “I’ll come back if you get help”.
On 5 June 2013, the first return date of the ADVO, the father asserts that the police informed the Court that the mother was in Melbourne on a holiday and was coming back to Sydney. The matter was adjourned for hearing on 10 July 2013. The father intends to contest the ADVO.
Since then the father has seen the child with the mother in Melbourne on one occasion being at the mother’s residence for about three hours. There was on the father’s report some pleasant time spent by him with the child.

The father reports conduct of the mother which he says otherwise causes concern as to her mental state, including an occasion on which the mother supposedly spat in his brother’s face. Apart from the physical violence referred to above, the father asserts that during arguments the mother frequently accused the father of “cheating on her”. He reports that the mother “hacked into” his email account and sent an email to a former girlfriend asking for a photograph of her. Further, the father asserts that the mother once hacked into the email account of a former girlfriend of his and used her credit card details to purchase goods online.
The relationship between the mother and father is described by the father as one which has been “rocky at times”. He reports that on one occasion in 2009 the mother threw a candlestick at him, which caused an injury to his head and saw him attend upon the emergency department of a hospital. On a separate occasion the father says that the mother threw a crystal ball at him, and on another occasion the father called the police to his home after the mother allegedly broke various items in the home, including a television and a window.
In December 2009, the mother tried to commit suicide by taking a combination of Panadol, Neurofen and alcohol and she was admitted to hospital as a result. Both the mother and father depose to this incident in their affidavit material. The mother asserts in relation to the incident as follows:
[T]he reason why I took the overdose of Panadol was because the father had informed me that his previous girlfriend… worked at a local brothel and he told me that perhaps I could contract a sexual disease.
She further deposes that she knows “it was a silly thing to do” and that she has “no suicidal thoughts now”.
The father asserts that, when he tried to assist the mother after she had overdosed, he was told by the mother that she would kill herself if he did not leave. He says that he is not aware of why the mother overdosed on this occasion.
In 2010 an interim ADVO was issued against the father for the protection of the mother. In relation to this incident, the father asserts that the mother wrongly reported to the police the events that transpired. He concedes that he pushed the mother, which caused her to fall and hit her head, but he says that this was in response to the mother having thrown a candlestick at him. The father asserts that the charges arising out of this incident were not proceeded with and that the interim ADVO was dismissed.
The father says that he “cannot say whether [the mother] holds fears as to me causing her physical harm”, however, he contends that text messages sent from the mother to him do not indicate that she fears him.
The father’s assertion is that the mother’s relationship with her family has also been “volatile”. He says that the mother would often go for long periods without speaking to her mother or sister. It is asserted that one such period of estrangement lasted for around 18 months. In addition, the father points to the failure in the relationship between the maternal grandmother and the mother’s sister which led to Ms K not seeing her grandchildren for around ten months.
The father concedes that he was banned from playing sport for ten years over an incident of violence with a referee in which he admits that he launched a ball at the referee. He further concedes that the incident, which he regrets, was “a stupid and impulsive thing to do”.
The mother says of the father that she is scared of him. Her reasons for this are set out in her affidavit filed on 11 June 2013 as follows:
(a)He is violent.
(b)He has hit me in the past.
(c)He has threatened to kill me
(d)He has threatened to cut my throat;
(e)He has tried to intimidate my sisters (sic) partner.
(f)He has yelled at me with [the child] in his arms
(g)He has tried to hit me whilst [the child] is in my arms.
(h)He has threatened to slap [my sister] in the face
(i)He has hit me in (sic) the nose
The mother asserts that since she became pregnant the father’s behaviour has become erratic. She further asserts that the father punched her in her jaw while she was pregnant and that he was “very aggressive” to her at the hospital on the day following the child’s birth and that a nurse was required to intervene. The mother says that a social worker at the hospital informed the mother that she was going to try to contact the father to see a psychiatrist.
The mother says that she is still in contact with the social worker and that she is currently consulting a counsellor in Melbourne.
The mother makes a number of assertions about the father not providing assistance to her with, inter alia, feeding and bathing the child.
It seems that many of the matters of fact raised by each party are in issue. On a hearing such as this, it is not possible to resolve each issue of fact.
The Court should in the circumstances of a case where allegations of this sort are made, act with caution in favour of the protection of the child.
There is some independent evidence before the Court but even that evidence, to be found in various hospital notes and police reports, relies on third party statements to a degree.
The hospital records from Hospital F produced under subpoena record an admission of the mother on 4 December 2009 in respect of which admission the mother was discharged on 6 December 2009. The hospital records give a history of the mother taking a combination of Panadol (approximately 40 tablets), Neurofen (approximately 20 tablets) and 3 x 700ml bottles of tequila. The mother is described as self-harming and as refusing to disclose reasons for that. There is a record that the event might be the second such attempt.
In the mental health assessment accompanying the December 2009 admission to hospital, the mother is described as having “longstanding emotional instability” and “interpersonal sensitivity”. The mother appears to have complained of feeling lonely and unsupported after the recent stress of moving from Melbourne to Sydney and as having an ongoing problem with her boyfriend. Her actions are described as giving the clinical impression of an impulsive overdose in the context of arguments with her boyfriend. She is described as being no longer suicidal.
In an earlier admission to Hospital F in April 2009, the mother had taken an overdose of an anti-depressant drug after what was reported to hospital staff as an argument with her boyfriend. The case history notes in relation to the April 2009 admission record various statements which appear to have been made by each of the parties, together with notes made by hospital staff.
The mother appears to have reported, inter alia, that she did not intend to harm or kill herself and that she just wanted to fall asleep. She reported that it was a “silly thing to do” and that she was just frustrated by the father. She appears to have reported that the father “winds her up” and does things like follow her to the bathroom and refuse to leave until she talks to him. It appears that the father reported that the mother is jealous, keeps pushing him away and is not concerned about safety issues. It is noted that the mother has a history of depression and that she has had psychotherapy which did not help. It appears that the mother was advised to consider relationship counselling and psychotherapy, and to take safety precautions with medication at home.
Tendered to the Court are the clinical notes of the mother’s admission to the Hospital G in May 2013 for the birth of the child. The clinical records reveal, inter alia, that the mother was admitted on 2 May 2013 and discharged on 7 May 2013. On 2 May 2013, the mother and father signed an Attendance at Caesarean Operation form by which they agreed for the father to be present during the birth of the child.
On 3 May 2013, a note written by a midwifery staff member reads as follows:
[The mother’s] mother came to the desk and said she was very upset about how her daughter’s partner was treating her daughter. She felt he was very controlling. She was in tears. The partner and [the mother’s] mother had a huge argument at the nurses desk. Midwife in charge … notified and … [the mother] notified of the situation.
The next day a note entered by a nursing staff member reads as follows:
[The mother] made no mention of last evening’s incident so matter not raised with her – she appeared in good spirits and said she had slept well.
The COPS records produced by the police under subpoena record a series of incidents which are relevant to a consideration of violent behaviour between the parties.
The first such incident occurred on 12 November 2009. That report relates to an incident described in the evidence where the father was allegedly hit with a candlestick thrown by the mother. From the COPS report it appears that there was an argument and the mother, who was the person of interest (POI), threw a candle at a wall. The father then tripped on the stairs and hit his head on the side of the staircase causing an injury to his head. An ambulance was called and the police allowed the mother to travel in the ambulance with the father. The police formed the opinion that no offence had been committed and that the father was clearly not in fear of the mother.
The second such incident occurred on 21 March 2010. The police were called to the Suburb T residence after a physical altercation had occurred between the mother and the father. The father, who was the POI, told police that the mother had become jealous because she had seen a girl who looked like the father’s ex girlfriend. The father told police that he pushed the mother in defence and that she fell and hit her head on a table. The mother refused to provide a statement to police and appears to have conceded that she was “going at him”. The COPS report notes that the police were “unable to determine the truth of the matter or the specific cause of the injury to [the mother’s] head.” No charge of assault was prosecuted, however, it appears an interim AVO was applied for.
The third incident occurred on 25 March 2010 and relates to an event in which the father is described as the victim and the mother as the POI. It appears that the mother conceded she had thrown a bowl on the ground. The police separated the parties upon the father offering to stay elsewhere that night. The police returned to the scene of the incident later in the evening, as the father had also returned. The police noted that there had been some further damage to property. The police intervened and assisted the mother to procure a flight to Victoria. The parties refused to make any statements and the police were unable to determine who might have been the aggressor.
The fourth incident occurred on 15 May 2013. The parties’ versions of that event are set out in their evidence and above. The matter is the subject of current proceedings for a final ADVO which the father has indicated he will defend.

Secondary considerations

(a) 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

There are none so expressed since the child at the time of the hearing was around eight weeks old.

(b) 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)

The evidence does not enable the Court to fully assess this matter.
It seems clear that the father was involved in the birth and the care of the child before the mother relocated to Melbourne with the child, and there is no evidence that the child’s relationship with either parent is other than that of an eight week old child.
It is also clear that the parties’ extended family members, particular the maternal grandmother and the mother’s sister, have had some involvement in the child’s life; however, the Court cannot fully assess the nature of those relationships give the child’s age.

(c) The extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

It seems to be conceded that the father has engaged himself with the child leading up to the child’s birth and since the child was born, subject to his work commitments. He has travelled to Melbourne once to see the child.
Given the child’s age, it is not possible for the father to have communicated with the child; however there is evidence that the father has attempted to communicate with the mother following her move with the child to Melbourne.

(ca) The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

The father has made one payment of $300 to the mother.
There has been a dispute about the registration of the child’s birth and the name by which he should be known. The Court is informed that that is likely to have been resolved or will be resolve soon. With respect to child support, it is asserted that the Child Support Agency cannot action its processes without the relevant birth certificate of the subject child.
There is it seems a suggestion that the father did not provide further support as a form of leverage to resolve the issues surrounding the child’s birth certificate. Notwithstanding that assertion, the father says that he will properly support his child.

(d) 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

The mother is presently living with her mother in Melbourne. The father proposes that the child would be moved to Sydney. The problem for the child associated with such a move is that the mother will be deprived of support from the maternal grandmother and the maternal grandmother’s partner in the care of the child.
The father says that the support of the maternal grandmother and the continuing relationship between the mother and the maternal grandmother is problematic. He points to the past events, however, there is no tested evidence currently before the Court from which the Court can make findings in that regard. It appears they are presently, at least, interacting cooperatively and that the maternal grandmother is providing support for her daughter and grandchild.
There is an issue of whether a failure to change the child’s present place of residence to Sydney would be likely to cause problems for the creation of a bond between the father and the child. This seems to the Court less likely than was suggested by the father at this early stage of the child’s life, and the Court is proposing to order a Family Report which will canvass the issue of attachment problems for the child which may arise should the present circumstances continue.

(e) 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

The geographical relocation of the mother to Melbourne will create difficulty and expense for the father particularly with respect to spending time with the child.
The father says that his costs for one hour of contact on a Sunday could be more than $600 each week and, if he was going to stay overnight in Melbourne, would exceed $1,000. The extensive nature of the costs if the father is to regularly spend time with the child will, it seems, cause an effect also on the quantum of child support likely to be paid.
The father seeks to alleviate these expenses by having the mother return to Sydney with the child. The father offers her exclusive use of the Suburb T residence, excluding an outbuilding from which he conducts his business.
The father submits that the mother would be able to reside in the house with the father paying all outgoings for her and the child. He would also of course pay child support unaffected by the costs of spending time with his son. Financially the offer has much to recommend it.
The mother, however, continues to allege that she is in fear of the father and would be unable to reside in Sydney without continuing anxiety and fear. She points to the effect that such fear might have on her capacity to continue to optimally parent the child if she were forced to return to Sydney.
The father, in an attempt to allay the mother’s fear, has offered to undergo an anger management course. The Court is told that the mother originally proposed that, together with other conditions, as a precondition for her return to Sydney; however, it seems she has since changed her mind on a return if such pre condition was fulfilled.
Counsel for the mother submitted that the mother has been the victim of a domestic violence cycle and that a characteristic of this cycle is that the person perpetrating the domestic violence seeks to control the victim and their actions including emotionally, financially and socially. It was submitted that requiring the mother to return to Sydney would socially isolate the mother and she would also have no discernable income. Placing the mother back in the home which has been the site of domestic violence, it was submitted, would be placing her back in an environment that would stress her.
It seems to the Court that on whichever view of the evidence one takes, this particular relationship has been invaded by a measure of anger and aggression emanating from each of the parties. In an endeavour to regain control of what appears to be impulsive outpourings of that nature, each of the parties might well be recommended to engage in an anger management course.
It is the Court’s view that, for the time being, although there will be significant expenses associated with requiring the father to travel to Melbourne to have contact with the child, and notwithstanding that this might well impact on the child’s right to maintain personal relations and direct contact with both parents on a regular basis, it is in the best interests of this child to remain in the care of the mother in Melbourne, away from an environment which carries the risk of being fuelled by anger, instability, volatility and potentially violence.

(f) The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

The father has given details of the tasks he has undertaken in the care of the child and, whilst some of those are in issue, the Court is at this stage unable to come to a conclusion that either parent is unable to deal with the needs of the child, save for that the mother is breastfeeding and the father concedes that he is unable to assist in that part of the child’s care.
In this case there are allegations on both sides of grandparents who are either interfering or supportive of their offspring or antagonistic to their child’s partner. Again, having not had the opportunity to test the evidence before it, the Court is unable to reach any conclusive finding on this.

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

The child is eight weeks old and is being breastfed. He presently has little contact with the father.
There is no evidence before the Court on an interim basis of any cultural considerations or traditions of the child, the mother nor the father which the Court finds are relevant to the immediate welfare of the child at this stage.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

This subsection is not applicable.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The Court refers to the father’s offer to provide accommodation and utilities for the mother and the child and in due course to pay child support. His present level of support is small however no doubt that will now change.
The mother with, it appears, the assistance of the maternal grandmother has been able to support the child.
Each of the child’s parents has, by their conduct in the creation of

conflict, failed in the responsibilities of parenthood to provide for the child a conflict-free environment.
Perhaps the mother’s departure to Melbourne could be seen as a move to escape such conflict and the father’s offer of exclusive occupation of the Suburb T residence or rented premises also an attempt to provide for the child a conflict-free zone.

(j) Any family violence involving the child or a member of the child’s family

There is an interim ADVO involving the mother and the father which was obtained ex parte. The circumstances of this order have been set out above.
The matter has been listed for hearing by the Local Court in July and the Court is informed that the proceedings will be defended by the father.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

Since the evidence in this matter has not been tested, it is not possible to make findings in respect of the existing interim and ex parte ADVO granted for the protection of the mother against the father. It seems clear that the factual basis on which the order was obtained is in issue, and that issue will be determined by another Court shortly.
The history of this relationship and these parties is that the relationship has at the least been beset by argument and disagreement. The aetiology of that is uncertain.
There is evidence before this Court (referred to above) which is said by the father on oath to have been procured by recording on his iPhone conversations between the father, the mother, the maternal grandmother and the mother’s sister. Given the issues at stake in relation to this child’s life, the Court exercised its discretion to admit typescripts/transcripts of those conversations annexed to the father’s affidavit material, notwithstanding that the recordings were obtained contrary to the Surveillance Devices Act 2007 (NSW).

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

This is an interim decision only and, regardless of the order that the Court now makes, there will be further proceedings for final orders in this matter.

(m) Any other fact or circumstance that the court thinks is relevant

One of the orders the Court proposes to make is for the appointment of a Family Consultant and preparation of a Family Report. At the hearing, the parties each made submissions as to whether a Family Report should be prepared at the Sydney or Melbourne registries. The mother’s preference was that it be done in Melbourne. Initially, the father’s preference was that it be done in Sydney, however, the Court was informed shortly prior to the conclusion of the hearing that he would be prepared to travel to Melbourne.
Given the orders with respect to the child that the Court intends to make on an interim basis, it seems that the most logical course of action with respect to the Family Report is to make an order that it be done from the Melbourne Registry. There will of course be costs associated with the father’s travel to Melbourne however there would likewise be similar, if not greater costs, associated with ordering that the mother, the child and the mother’s extended family travel to Sydney.
At this interim stage of the proceedings, there is no other fact or circumstance of which the Court is aware that it thinks is relevant.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons, I conclude that the Orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in a child’s best interests for its parents to have equal shared parental responsibility.
The presumption does not apply in circumstances where there has been family violence. In this case there has been family violence, the circumstances of which have been set out earlier, and the presumption therefore does not apply.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if that were determined to be in the best interests of the child. The parties did not address the issue of parental responsibility in their proposed orders.
In the circumstances of this case, the Court finds that it would not be appropriate to make an order in relation to parental responsibility without further testing of the evidence.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 18 July 2013.

Associate:

Date: 18 July 2013

[2013] FamCA 535

18 July 2013

Key Legal Topics

Areas of Law

Civil Procedure

Commercial Law

Legal Concepts

Abuse of Process

Res Judicata

Stay of Proceedings

Jurisdiction