Donalds & Donalds

[2020] FCCA 3604

FEDERAL CIRCUIT COURT OF AUSTRALIA

Donalds & Donalds [2020] FCCA 3604

File number(s):	MLC 11505 of 2020
Judgment of:	JUDGE CARTER
Date of judgment:	21 December 2020
Catchwords:	FAMILY LAW – Parenting – Unilateral relocation – Father seeks return of child – allegations of family violence – allegations of risk – Mother’s health – practicability – Father’s relationship with the child – Mother to return to Victoria – orders made.
Legislation:	Family Law Act 1975 (Cth), ss 11F, 60B, 60CC, 65D, 102NA, 102NA(1)(c)(ii)
Cases cited:	Goode & Goode [2006] FamCA 1346
Number of paragraphs:	63
Date of last submission/s:	16 December 2020
Date of hearing:	11 & 16 December 2020
Place:	Melbourne
Solicitor for the Applicant:	Joseph David Lawyers
The Respondent appeared in person.
Solicitor for the Independent Children's Lawyer:	Nicholes Family Lawyers

ORDERS

MLC 11505 of 2020

BETWEEN:

MR DONALDS

Applicant

AND:

MS DONALDS

Respondent

ORDER MADE BY:	JUDGE CARTER
DATE OF ORDER:	21 DECEMBER 2020

THE COURT ORDERS THAT:

1.The child X born in 2019 (“the child”) live with the Mother.

2.The Mother return the child to live in the metropolitan region of Melbourne, Victoria by no later than 31 March 2021.

3.The child spend time and communicate with the Father as follows:-

(a)whilst the parents are located in different States, by electronic communication, being via Zoom, FaceTime or Skype every alternate day between 6.00pm and 6.15pm, with the Mother to facilitate the call;

(b)for the first six face-to-face spend time periods, for not less than two hours, each week, either in New South Wales (if that can occur) or in Victoria upon the Mother’s return to Victoria, such time to be professionally supervised by a service nominated by the Independent Children’s Lawyer, at the Father’s expense; and

(c)thereafter, for two hours every Tuesday, Thursday and Saturday at times to be agreed taking into consideration the child’s routine and failing agreement from 3.00pm until 5.00pm.

4.The Father shall meet the costs of a supervisor’s report upon the conclusion of the sixth supervised visit, such report to be provided to the Mother and to the Independent Children’s Lawyer.

5.The parties have liberty to apply following the birth of the parents’ second child (anticipated on or about 3 February 2021).

6.Each parent provide to the Independent Children’s Lawyer within 24 hours their residential addresses and contact telephone numbers, and notify the Independent Children’s Lawyer within 24 hours of any change to those details, NOTING THAT the Independent Children’s Lawyer is not to provide the Mother’s address to the Father without the Mother’s agreement in writing or order of this Court.

7.Within 24 hours the Mother provide to the Father and the Independent Children’s Lawyer via email the following information:-

(a)the name and address of her treating doctor and any medical specialist who is currently treating her; and

(b)her birth plan, including the name and address of the hospital where she intends to give birth to the parents’ second child.

8.The Mother keep the Father informed via email or SMS text message of any serious illness, accident, or injury sustained by the child and any medical treatment received by the child, including the name and contact details of the child’s treating medical practitioners and authorise those people to provide the Father with information about the child’s treatment.

9.The parties each be and are hereby restrained from:-

(a)exposing the child to denigration of the other party; and

(b)physically disciplining the child;

to or in the presence or hearing of the child or from permitting any other person so to do.

10.Pursuant to section 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth) (“the Act”), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Mother under the cross-examination scheme.

11.The proceedings are adjourned to 1 April 2021 at 10.00am for mention.

12.Pursuant to Section 62G(2) of the Family Law Act 1975, a court funded Family Report be prepared in relation to the parties and the child, to be released 35 days prior to trial. The parties shall comply with all reasonable directions of the Family Consultant including making themselves, the children and any other relevant person available at times nominated by the Family Consultant.

13.The Family Consultant may inspect all subpoenaed material which has been released to the parties.

14.Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.

15.The proceedings are listed for Final Hearing for 3 days commencing 9 June 2021 at 10.00am.

16.Each of the parties electronically file and serve any Amended Initiating Application or Amended Response, an updated Financial Statement if relevant, and one trial affidavit upon which they seek to rely by no later than 28 days prior to the Final Hearing.

17.Each of the parties be at liberty to electronically file a short affidavit in reply by no later than 14 days prior to the Final Hearing.

18.The Independent Children's Lawyer electronically file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.

19.Each party electronically file and serve a Court Book by no later than two days prior to trial, such Court Book to:-

(a)be in portable document format (PDF);

(b)be capable of being searchable for specified text;

(c)be paginated and have an index;

(d)have each entry in the index electronically bookmarked; and

(e)include:-

(i)an Outline of Case document;

(ii)all documents previously filed in the proceedings upon which that party seeks to rely at Final Hearing, NOTING THAT any expert evidence and/or welfare reports are to be included in the Court Book of the Independent Children’s Lawyer, and in the absence of the Independent Children’s Lawyer, to be included by the Applicant.

20.Liberty is granted to the parties to apply generally and at short notice.

21.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.Pursuant to order 10 hereof, the Mother do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable her legal representation at Final Hearing.

B.The relevant application referred to in Notation A hereof is available to the parties at 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Donalds & Donalds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE CARTER

1. This is the parenting decision in relation to the parties’ one and a half year old child, X, born in 2019. The Mother is currently pregnant with the parties’ second child, who is due on about early 2021. The Mother describes that as a high-risk pregnancy. The Mother also has an older child from a previous relationship, Mr B, who is now 22 and also lived with the parties substantially during their relationship but now lives independently.

2. The parties were married in 2012 and separated on 16 October 2020. At that time, the Mother obtained an Intervention Order against the Father on an ex parte basis, which excluded him from the home. There has been no physical time between the Father and X since.

3. While the Intervention Order initially excluded the Father from the home, that was subsequently varied on about 20 October 2020 to allow the Father to return to the home as the Mother, by then, had vacated it. The Intervention Order proceedings have concluded, with final orders being made by consent on 20 November 2020 without admission, pursuant to which the Mother now has a two-year Intervention Order in place naming herself and both X and Mr B as protected parties.

4. The Father filed the proceedings in this Court on 22 October 2020. It is his case, in the documents that he filed at that time, that he was very involved in X’s care and ultimately he would like, in due course, an equal time arrangement when X is older. He says he has a warm and loving relationship with X.

5. At the time that he filed the Initiating Application, he was not aware that the Mother had or was about to relocate to New South Wales. However, he understood that might be what would occur and he expressed considerable concerns that relocation would significantly impact on X’s relationship with him, and of course, on the new baby’s relationship with the Father in due course.

6. He strenuously denied that there was any basis for the Intervention Order and denied all allegations of violence, abuse, intimidation and coercive and controlling behaviour.

7. There were attempts made to serve the Mother on a number of occasions. Shortly after the Father had filed the proceedings in this Court, according to the affidavit of the process server there were some difficulties in that it appears that the Mother was somewhat unco-operative with the process server and refused to accept service of the documents.

8. The matter first came before me on 4 November 2020. At that time the Mother was in person.  She advised the Court that she had recently moved interstate but refused to disclose her address.  My understanding is that she had moved after the Father had issued proceedings and after she knew that there were attempts being made to serve her with the proceedings.

9. The Mother says that she moved interstate because she had to, to flee family violence. She says that there are criminal matters on foot that she felt needed to be dealt with first. I understand at that time what she was referring to was the Intervention Order application which, as I said, has now been finalised. She also said that she had not been properly served.

10. On that day I made a number of orders, including that the Mother was to provide my Associate with her address, which she has done. The Mother was also to be served by email with all the documents that the Father had filed, which has occurred. I made an order appointing an Independent Children’s Lawyer, a further order for the Mother to file material by 27 November 2020, an order for the parties to participate in a Child Inclusive Conference and an order adjourning the matter to 11 December 2020 for an interim defended hearing.

11. The matter could not proceed on that day as the Department of Health and Human Services (“the Department”) had not yet provided a response, and ultimately the matter proceeded before me on 16 December 2020.

12. I have carefully read all the material that has been filed by the parties in these proceedings.  The Mother’s material sets out a litany of complaints about the Father, and sets out that she was, she says, subject to violent and controlling behaviour throughout the relationship.  Part of the Mother’s affidavit focuses on the lack of intimacy between the parties and unhelpfully it outlines aspects of their sexual life that left her dissatisfied.

13. Much of the mother’s material is very critical of the Father, asserting not only that he was very violent and abusive but he was also aggressive, manipulative, that he can be deceptive, at times lazy, verbally abusive, financially and socially controlling, a bully and a liar and that he has uncontrollable anger issues. She says that he subjected herself and Mr B to frequent taunts and threats, belittling them and causing them to be on alert and eroding their sense of self and security.

14. She says both she and Mr B have subsequently lodged Victims of Crime applications to assist with the cost, for instance, of counselling for them. She says that she and Mr B have had to endure what she says is “unrelenting torture” at the hands of the Father, and she wonders in her material when the abuse will start on X. She also sets out that the Father had expressed angry thoughts, and that she has some concern about that because thoughts are what produce our reality.

15. The Mother also sets out that she was raped by the Father in 2016. I note that she has only recently reported that to the police, on 3 November 2020. That was the day before the first Court date, and as I understand it, at about the same time that the Mother appears to have signed a 12 month lease on a property in New South Wales.

16. There are further criticisms and observations that the Mother makes including, that the Father has at times taken very strong painkillers due to an ongoing back issue, that he has taken her prescribed sleeping tablets in the past and that he has a criminal history including burglaries and driving offences.

17. It is her case that the Father has significantly exaggerated his role in X’s care. She says that he was a disinterested father and that he had left X unattended on occasion when he was meant to be watching him, that he has been neglectful of X and that that has caused X injury in the past.

18. The Mother says that accordingly, the time between X and his Father needs to be supervised. However, at the time that the matter proceeded before me, the Mother had not made any enquiries as to potential contact centres or private supervisors, or the costs, availability or delays in those services. She did suggest that it would be possible that her mother, for instance, could provide supervision.

19. The Mother says that she knows that a father is important in a child’s life, but she says that she cannot allow the children to be, as she says, “destroyed” by him with his abuse, neglect and character assassination.

20. She says that she fled to New South Wales to be closer to her family and friends, all of whom are in New South Wales. She describes herself as being isolated and alone in Victoria and that she is now much happier living within driving distance of her support network. She says she has entered into a lease for 12 months and she has now furnished that home, purchasing whitegoods and furniture for herself and the children. She says that it will cause her significant hardship if she has to cancel that lease.

21. The Mother has also filed material from other witnesses on her behalf, including a friend, her eldest son, a work colleague and other family members. Mr B confirms that the Father could be mean, nasty and argumentative, and that on one occasion the Father hit him on the back of his head.  Mr B described the Father as a “rude idiot”.

22. The Mother’s friend filed an affidavit which, in my view, adds little other than to say that the mother has recently reported to her the complaints that she makes of the Father in her material. Another affidavit from a work colleague in Victoria confirms that the Mother had also confided in her various issues in relation to the marriage.

23. I have also read carefully the affidavit of the maternal uncle. In my view that contains limited evidence that would suggest that there is any significant risk to X in the Father’s care, save the suggestion that he could be a flight risk as the Father is from New Zealand. The material from the maternal grandmother contains a significant amount of hearsay and a number of other matters that are of limited assistance.

24. There is also an affidavit from the maternal grandfather, who he confirmed that he himself had seen the Father be demeaning to Mr B, observed the Father being difficult and uncommunicative and that he became angry and upset when the maternal grandfather sought to counsel the couple. He also confirmed that the Mother had advised him in 2016 of the alleged sexual assault.  He describes the father as “a Control freak” and “a Monster ”.

25. The Mother also has filed an affidavit from her niece, who has confirmed that the Father has attempted to communicate with her on a number of occasions to speak with the Mother or to find out about the Mother, subsequent to the making of the Intervention Order.

26. In terms of the Father’s material, as already indicated, he strenuously denies all allegations of family violence and control, abuse, manipulation, gas-lighting and deceit – indeed all of the criticisms that the Mother makes of him. He says that he has been an engaged, loving and devoted Father.  He says he has done his best with Mr B.  He denies that he belittled Mr B and denies ever being less than vigilant with X and the care of him.

27. The Father says that the criminal history to which the mother refers is very historical. He was caught for unlicensed driving in 2001 and there was some burglary and related charges from 1997 and 1998 when he must have been around 19 or 20.

28. He denies the allegations of financial control and says that the parties had separate bank accounts and the Mother had complete control over her own funds. I note in the Mother’s material she acknowledges that they maintained separate accounts and my understanding is she has amassed some $19,000 in savings. Indeed, it may have been more than that at the time the parties separated, as the Mother has now funded her move to New South Wales, purchased furniture and whitegoods and secured a lease. Currently, according to her material, she has some significant savings although she says that they are earmarked already for dental work and providing care for the parties’ new baby.

29. The parties then attended upon a Family Consultant for an assessment pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”). That memorandum provided little assistance and guidance in terms of what arrangements should be made for X’s care on an interim basis. The Family Consultant confirmed that there appeared to be very few options for time between the Father and X and the Father and the newborn baby whilst the Mother remains living interstate. It was also observed, and is quite obvious, that the relationship between the parents is currently very poor.

30. As already outlined, on 11 December 2020 when the matter was before me, the Department had not provided a Response to the Notice of Risk and the matter was adjourned to 16 December 2020. The Department subsequently provided a Response and in that they confirmed that the Mother maintained her position that the Father subjected her to family violence on a daily basis and that he was controlling and domineering to her and to Mr B. The Father also maintained his denial of those allegations.

31. The Department noted that they were closing involvement in the matter and they had no protective concerns with respect to the Mother’s care of X. The Department assessed that family violence had been present in the marriage and they assessed that that had been perpetrated by the Father against the Mother. The Department said that “Safety and stability are core needs that X requires” to ensure his “psychological safety”. The Department said that the contact between the Father and X should be “monitored”, given the discrepancy in the parties’ accounts of the role the Father played in his life and as to the discrepancies in their allegations of family violence. The Department did not set out what they meant by “monitored”.

1. This is an interim hearing and I am permitted to provide short form reasons. Again, as this is an interim hearing, I am not able to make findings of fact where those are in dispute. I must follow the pathway as set out by the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 in terms of an interim hearing. I must identify the parties’ competing proposals, identify any agreed facts, identify issues in dispute and work my way through the relevant legislative pathway. Whilst I will not address each and every consideration pursuant to section 60CC of the Act, I do take each of them into account.

2. In terms of the proposals, the Independent Children’s Lawyer and the Father provided the same proposed minute that provided, in summary, for:- 

   (a)electronic communication between the Father and X on alternate days;

   (b)time between the Father and the child every alternate day if the Father was to travel to New South Wales to have time; and

   (c)upon the mother’s return to Victoria, that there should be time three times per week.

3. I note that a further complicating matter in these proceedings is the recent COVID-19 outbreak in the Sydney and Region C area of New South Wales. The Mother currently lives in Suburb D, which I expect is part of what has currently been designated a “red zone”. That would mean it is probably extremely unlikely that the Father would be permitted to travel to see X and equally difficult for X to be able to come out of that red zone and to see his Father, without there being some quarantine requirement in Victoria. 

4. The Independent Children’s Lawyer and the Father also sought that the Mother return to metropolitan Melbourne by 31 March 2021, and that:-

   (a)each party provide to each other their addresses and contact details; 

   (b)the Mother provide details of her treating doctor and birth plan;

   (c)the Mother provide information in the event that X suffered a serious illness or injury; 

   (d)there be restraints on both parties from denigrating the other or from using physical discipline on the children; and

   (e)the matter proceed either to an interim defended hearing or, if possible, a Family Report and an expedited Final Hearing.

5. The Mother strongly opposes being required to return to Victoria. She seeks to remain in New South Wales.  She proposes that there be supervised time between X and the Father, although, as I have already said, she did not provide any details as to how that could work other than suggesting that a family member of hers could provide supervision.  Essentially, the issues in dispute are whether or not the Court should exercise its coercive power and require the return of the Mother and X to Victoria pending a Final Hearing, and also what time and what conditions for the time between X and the Father pending a Final Hearing.

6. There are very few agreed facts in this matter, and much is in dispute. It is common ground that the parties lived in Victoria during their marriage. It is common ground that X lived his whole life in Victoria until about two months ago, when the Mother unilaterally removed him to New South Wales.  It is also clear that both parties in their material set out that the Father should play an important role and will play an important role in children's lives. Beyond that, as I said, many, many matters are in dispute.

7. In terms of the considerations, there are two primary considerations, the first of which is that I need to consider the benefit to X of having a meaningful relationship with each of his parents. I must also, secondly, consider the need to protect him from harm.  If there is conflict between those two considerations, then greater weight must be given to the need to protect a child from harm. It is difficult, in my view, to see how X can have a meaningful relationship with his Father if he and the Mother remain living interstate at this stage.

8. X is a very young child, and the social sciences are clear that, in general, young children need frequent visits of shorter duration with their non-resident parent in order for their relationship with that parent to thrive and develop. That clearly is going to be extremely difficult to accommodate whilst the parties live in separate states.  Similarly, once the new baby is born it is difficult to see how the father-child relationship is going to be nurtured, given that physical distance between the parents.

9. On an interim basis it is plain, accordingly, that if the parties remain living in different states to each other it is difficult to see how a meaningful relationship can be maintained for X or introduced for the new baby.

10. In relation to the allegations of risk, it is clear that the Mother asserts that there would be significant risk issues faced by X if he has unsupervised time with the Father. The Father strenuously denies those allegations. As I have said, I cannot make findings of fact where those matters are in dispute, and, at any rate, in my view, if there are risks, those could be substantially ameliorated by there being some professionally supervised time in the interim. I will return to that consideration shortly.

11. In terms of the balance of the considerations pursuant to section 60CC of the Act, I will not go through each of them. Some are not relevant at this stage. For instance, the views of the children. In terms of the nature of the relationship between the Father and X, I have no independent evidence about that. Clearly, if they remain living a considerable distance apart, that relationship is unlikely to flourish or develop, and, in my view, there is a real risk that that relationship deteriorate. Similarly with the new baby.

12. I anticipate that X has a close and loving relationship with his Mother, and I do not suppose that there is any doubt or dispute about that. I do not have any independent evidence about the impact of separation from the Mother on X, but I note that on the proposals put forward by the Father and the Independent Children's Lawyer, any separation from her would only be for short periods of time, which I do not anticipate would be unduly distressing for X.

13. There are allegations and counter-allegations regarding matters relevant to the other considerations, including as to the capacity of the Father to meet the child's needs and allegations of family violence. Those matters will no doubt be fully explored at trial. Whilst I cannot make definitive findings of family violence and risk – or at least, I ought to be very cautious about doing so on an interim basis – that does not require the Court to ignore allegations if they are plausibly made. I have carefully considered the Mother's allegations of violence and of poor parenting and of risk, and, in my view, I am not satisfied that X would be at significant risk in the Father's care if the time between the Father and he was not supervised.

14. However, the Court also needs to take a conservative approach, and, in my view, the Court will be assisted by the first six visits between X and the Father being professionally supervised and a report prepared. That would mean that an independent person can provide some useful feedback to the Court regarding X's response to the Father and some insight into the Father's capacity to provide appropriately for X or otherwise. I note that that would also provide some monitoring of the time, as suggested by the Department.

15. The Mother's suggestion that the maternal grandmother could supervise, in my view, is not an appropriate proposal.  Firstly, I am not clear that the maternal grandmother has any availability to do so, and, secondly, I have some concern that the Mother and her family appear quite hostile to the Father. That would mean that it would be difficult for them to provide independent feedback to the Court, and it could also be quite a tense and stressful experience for X if his Father and members of the Mother's family were together in the room with him.

16. Given X's young age and his primary attachment to the Mother, and given that the Mother is very shortly due to have the parties' second child, it is apparent that the children will need to live with her, at least on an interim basis, and that is also what is proposed by the Father. He does not challenge that position.

17. Accordingly, this is one of those rare matters where the Court must consider whether a coercive order needs to be made directing the Mother to return with X and the parties' second child to live in Victoria on an interim basis. That is, this may be a matter in which the Mother has a right to freedom of movement but that that right must defer to the paramount consideration of X's best interests if that is to be adversely affected by his Mother's choice of where she wishes to live. I note further that pursuant to section 65D of the Act, I am required to make such parenting orders as I think proper. I must take into account the principles and objects of the Act as set out in section 60B of the Act, which includes ensuring that children have the benefit of both parents being meaningfully involved in their lives and the need to protect children from physical or psychological harm, as well as X's right to know and be cared for by both of his parents.

18. It is abundantly clear I must also consider questions of practicality, and I gave the parties opportunities to provide the Court with further material to address those considerations. The Mother says that she cannot return to Victoria. That is a proposition that she describes as “ridiculous” in her affidavit material.  She says that Victoria and, particularly, the house in which she was previously residing, hold horrific memories for her.  She says that her pregnancy is a high-risk pregnancy, it is an IVF pregnancy and that she has an autoimmune disease.

19. She says the baby is small and that the effect on her of stress is significant and could be, potentially, very dangerous for the pregnancy. She has provided a short medical certificate from Dr E, who states that this is a high-risk pregnancy with a low foetal birth rate which requires constant or frequent monitoring by the obstetrician. The doctor reports that the Mother is under an extreme level of anxiety and stress, which is affecting her endocrinal problems, and the doctor strongly advised against the Mother travelling at this time.

20. The Mother also says that it is not practicable for her to return to Victoria as she has no supports and no home here. Conversely, she says the Father can move and that he has previously expressed a strong interest and desire to move interstate. She says that his employment is transportable and he would be able to move. Those are, no doubt, matters that will be fully explored and ventilated at a Final Hearing. I note that the Mother is currently on maternity leave, but she describes in her material that she has a stable job to return to, but she anticipates she will not do that for the next two years.

21. However, she also says that she is considering being able to work from home. The Mother has $19,000 currently in savings. She says she needs this to meet urgent dental work that she needs to undertake and to meet the costs of caring for the new baby. I do not have any independent evidence from a dentist either about the necessity of the dental work nor as to the costs of same. The Mother says that she has no family or supports in Victoria. I note, however, that her son Mr B remains living in Victoria. I note further that one colleague and one friend have filed an affidavit on her behalf in these proceedings.

22. Whilst the Mother does not actually set out what support is available to her in New South Wales in terms of emotional or practical support, I accept that the maternal grandmother and potentially other members of the Mother's family provide some assistance to her. However, given the recent COVID-19 outbreak in New South Wales, I am unsure how much practical support will be able to be provided in the coming weeks.

23. The Father has indicated that he would vacate the home that the parties were renting and allow the Mother to move back in there with X and both children. However, the Mother is adamant that she would not be prepared to live there. She says that that house holds many significantly upsetting memories for her and she would not be comfortable living there. That is a matter for her. She does, however, have some funds and some income. In my view, she would be able to meet the costs of finding accommodation for herself and housing herself and the children upon her return.

24. The Mother says that she would endure a period of being homeless if she was required to return.  I do not accept that that is a necessary consequence of an order for return, given that there would be a significant delay, and an order for return is not being sought until 31 March 2021.  Whilst the Mother will no doubt be very busy between now and then – particularly in attending to the parties' newborn child – in my view, that would give her sufficient time to locate and obtain rental accommodation for herself and the children.

25. The Mother says that a return order would be disrupting for X and extremely distressing for herself, X and the new baby. I note, however, that she and X were previously living in Victoria and that X has done so throughout his life. It is only in the last two months that he has lived in New South Wales.  Moving to New South Wales itself, in my view, included being separated from his Father, which must have been disruptive for X.

26. I accept that returning to Victoria will be difficult for the Mother and very inconvenient for her. However, I am also satisfied that it can be accomplished and that it is in X's best interests that he return to Victoria pending a Final Hearing, when the parenting dispute can be properly and fully ventilated.  In my view, this is one of those rare matters where it is necessary to order the Mother to return with X to Victoria on an interim basis. Doing the best I can, in my view, the orders that are sought by the Independent Children's Lawyer and the Father that require the Mother to return to Victoria by 31 March 2021 are, in my view, the orders that should be made, and they are the orders that are in X's best interests.

27. The Court will then accommodate an expedited Final Hearing. I am able to list the matter in June 2021, with an internal Family Report to be prepared between now and then.  If the parties remain interstate from one another, in my view, X's relationship with the Father could be potentially severely impacted. It is difficult to envisage how the new baby's relationship with the Father can be readily facilitated if the parties continue to live at a considerable distance. I note further the recent COVID-19 flare-up, which complicates matters further. If the parties are not living in relative close proximity to each other, interstate or even intrastate travel can become problematic.

28. X is still very young, and short but frequent visits will be necessary to develop and promote his relationship with the Father. It is difficult to see how that can happen whilst the Father is in metropolitan Melbourne and the mother is in Suburb D in New South Wales. Whilst that means on an interim basis, according to my orders, the Mother will not be living in a situation of her choosing, I note that she was living here until she unilaterally determined to relocate without notice to the Father and without notice to this Court.

29. She does have some support here, and, whilst they may be limited, she does have the benefit of her adult son and at least a work colleague and a friend who was sufficiently supportive to file an affidavit on her behalf in these proceedings. X has spent his whole life in Melbourne, save for the last two months.  Living here on an interim basis will mean that time can occur frequently between the Father and the children. I am then able, as I have said, to give the matter an expedited Final Hearing in June 2021, and proper consideration can then be given to the appropriate living and care arrangements for both children.

30. The delay until 31 March 2021 gives the Mother time to find accommodation. I appreciate that this will be very difficult for her to manage, but it is not impractical for her to do so. The Mother will need to provide the Independent Children's Lawyer with her address, and, whilst I have some reservations as to the need for the address to remain undisclosed to the Father, I will not order that she provide that address to the Father at this stage.  It is sufficient that it be provided to the Independent Children's Lawyer. I will be able to hear more evidence and determine that issue at a Final Hearing.

31. Accordingly, I will require the Mother to return by 31 March 2021, and I will order that the first six visits between X and the Father will be supervised by a professional supervisor. This will mean the Court will then have a report from a supervisor, who will be able to flag if there are any significant issues that need to be brought to the Court's attention. I will also include an order that there is liberty to apply so that in the event that a supervisor's report indicates any risk issues that the matter can be returned to Court.

32. I will issue my usual trial directions, which will include the preparation of a Family Report. I will also provide all parties liberty to apply at short notice. I further note that this is a matter pursuant to which section 102NA of the Act applies, and I will make an order pursuant to section 102NA(1)(c)(ii) in relation to the Mother.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter.

Associate:

Dated:       27 January 2021