Feist and Cazet

[2013] FCCA 1031

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEIST & CAZET [2013] FCCA 1031

Catchwords:
FAMILY LAW – Parenting – interim proceedings concerning child aged 16 months – where the father unilaterally relocated from [H] to Sydney with the child upon separation – where the mother seeks an order that the child live with her in [H] – where the father wishes to remain in Sydney with the child – where the mother has mental health issues and is also working full time – whether the mother’s mental health issues are as serious and debilitating as the father suggests or whether the father has exaggerated to achieve an outcome – ordered that provided that the father returns to the [C] area the child live with the father during the week and the mother each weekend pending future arrangements for the child being sorted out in an orderly fashion.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

C & S (1998) FamCA 66
Morgan & Miles (2007) FamCA 1230

Applicant: MS FEIST

Respondent: MR CAZET

File Number: CSC 564 of 2012

Judgment of: Judge Terry

Hearing date: 30 July 2013

Date of Last Submission: 30 July 2013

Delivered at: Newcastle

Delivered on: 8 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Levick

Solicitors for the Applicant: Emery Partners

Solicitor Advocate for the Respondent: Ms Hamilton

Solicitors for the Respondent: Peter Hamilton & Associates

ORDERS

1. The mother and father shall have equal shared parental responsibility for the child [X] born on [omitted] 2012.

2. The child shall spend time with the mother at the home of the maternal grandmother from 3.30pm on Friday until 3.30pm on Sunday on the weekends of 9/10/11 August 2013 and 17/18/19 August 2013 with the father to deliver and collect the child to and from the maternal grandmother’s home.

3. Provided that by no later than 5.00pm on 20 August 2013 the father relocates the child’s place of residence to within 20 kilometres of [C] Post Office:

   (a)The child shall live with the mother:

   (i)from 5.30pm each Friday until 8.30am each Monday;

   (ii)at such additional or alternate times as may be agreed between the parties

   (b)The child shall otherwise live with the father.

4. For the purposes of order (3)(a)(i) the mother shall collect the child from the father’s residence at the commencement of that time and return the child to the father’s residence at the conclusion of the time.

5. If the father fails to relocate the child’s place of residence to within 20 kilometres of [C] Post Office by 5.00pm on 20 August 2013 the child shall live with the mother until such time as the father establishes a residence within the designated area and spend time with the father each alternate weekend commencing on Friday 30 August 2013 from 9.00am on Saturday  until 3.30pm on Sunday with the father to collect the child from the mother’s residence at the commencement of that time and the mother to collect the child from the father’s residence at the conclusion of the time.

6. Notwithstanding any other order the child shall spend time with the father on Father’s Day either:

   (i)by the mother delivering him to the father at 5.30pm on Saturday rather than 8.30am on Monday or

   (ii)by the child spending time with the father on the Father’s Day weekend from 9.00am on Saturday until 3.30 pm on Sunday in lieu of the following weekend as the case may be.

7. Within 48 hours of the date of these orders each party shall undergo supervised chain of custody urinalysis to test for the presence of illicit drugs and shall provide a copy of the results to the solicitor for the other party as soon as they are received and bring a copy of the results to court on the next occasion.

8. Each party is restrained and an injunction is granted restraining them from using any illicit drugs while the child is in their care or for 12 hours prior to the child coming into their care.

9. In the event that the child is hospitalised or requires urgent medical attention the parent with whom the child is living shall notify the other parent as soon as reasonably practicable after the first contact with the medical practitioner, medical centre or hospital and each parent may visit the child in hospital.

10. Each parent is to keep each other informed of their current residential address, postal address, landline (if they have one) and mobile telephone numbers and advise the other parent within 24 hours of any changes to any of these details.

11. Neither parent is to denigrate the other parent, members of their family or friends in the presence of the child nor allow any other person to do so.

12. Each parent is restrained and an injunction is granted restraining them from intimidating or stalking the other party or being instrumental in any other person doing so.

13. The matter is adjourned to 9.30am on 27 September 2013 for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

CSC 564 of 2012

MS FEIST

Applicant

And

MR CAZET

Respondent

REASONS FOR JUDGMENT

Introduction

1. Until 2 May 2013 Ms Feist and Mr Cazet lived together in [A] near [C] with their son [X] born on [omitted] 2012. The mother worked full time at [omitted] and the father provided care for [X] while the mother was at work.

2. On 2 May the father travelled to Sydney with the [X] and remained there. 

3. On 7 May the mother filed an application seeking urgent parenting orders. She sought orders that [X] live with her and spend time with the father each weekday and each alternate weekend if the father returned to live in the [C] area or each alternate weekend if he remained in Sydney.

4. The orders sought by the father are that [X] lives with him in Sydney and spends time with the mother on the 2^nd 3^rd and 4^th weekend of each month from 3.00pm on Friday until 3.30pm on Sunday at the home of the maternal grandmother and supervised by the maternal grandmother.  

5. Both parties propose an order for equal shared parental responsibility.

Background Facts

1. The mother is 38 and the father 32. They commenced a relationship in about March 2009 when the mother was living and working in [H] and the father was living and working in Sydney.

2. For the first seven months the relationship was maintained by the father spending weekends with the mother in [G]. From December 2009 the father had time off work due to illness and began spending more time with the mother in [G].

3. In August 2010 the mother sold her house in [G] and the parties relocated to [P], North Queensland. They had taken a fancy to [P] after holidaying there and after they moved there they both quickly obtained employment. 

4. In November 2010 the parties purchased a [H] franchise in [P] and they both worked in the business.

5. In either April or June 2011 the father also became an [omitted].

6. In August 2011 the mother discovered that she was pregnant and in November 2011 she ceased working in the business and obtained a job as a [omitted].  The mother said that this was because the business was not doing well; the father said that it was because he and the mother were arguing too much and could not work together. I cannot determine where the truth lies about this.

7. The mother ceased work altogether in January 2012 and on [date omitted] 2012 gave birth to [X].

8. The mother was [X]’s primary carer after his birth. I accept that the father was an interested father who helped care for the child when he was at home, but his own evidence was that he worked seven days a week until October 2012. In his first affidavit he stated that the mother cared for [X] during the day for the first seven months.

9. The father said that from October 2012 onwards he reduced his working hours and became much more involved in [X]’s care. The mother agreed that the father reduced his working hours but disputed the extent of the help he thereafter provided in the care of [X].

10. The mother has a mental illness and she found the period after [X]’s birth very difficult. She was diagnosed with major depression in her teens and with bi-polar disorder at some later time and she has a long history of being medicated for mental health issues. During her pregnancy she ceased taking her mood stabiliser medication in consultation with doctors and she was warned by a psychiatrist that she was at high risk of a suffering post-natal depression. This turned out to be only too true.

11. The father said that the mother began behaving very erratically and threatened to kill herself and self-harmed and that he had to force her to get help. The mother agreed that in July 2012 she went to [omitted] Base Hospital seeking treatment and that in October 2012 she went to [omitted] Hospital for an evaluation after the father threatened to call an ambulance.

12. Nevertheless throughout this period the father continued to go to work and the mother continued to care for [X].

13. The mother’s evidence was that in October 2012 she re-commenced taking Lithium and her mood improved and she also began receiving weekly visits from a social worker. The father did not agree that there was a significant improvement in the mother’s mental health after October 2012.

14. Both parties reported that their relationship was very unhappy. The mother said that she felt unsupported by the father and very stressed about financial matters because the business was doing badly and this did not help her mood. The father blamed everything on the mother’s behaviour arising out of her mental illness.

15. In September 2012 the father applied to the Local Court at [P] for an order to prevent the mother leaving [P] with [X] but he discontinued the proceedings without ever telling the mother that he had started them.

16. The mother has experience as a [occupation omitted] and in November 2012 she applied for the position of [omitted] [in [C]]. She was advised in December 2012 that she had been successful. The father was apparently reconciled by this stage to the parties returning to NSW because they sold the [H] business and he did not try to prevent the mother leaving.

17. On 18 January 2013 the mother returned to NSW with [X]. She rented a home at [A] a few kilometres from [C] but for the first few weeks after her return she lived with the maternal grandmother at [O].

18. The father returned to NSW on 28 January 2013. The mother was initially opposed to him moving into the [A] property with her because of the relationship problems the parties had been having but on 11 February 2013 the parties and [X] commenced living at the [A] property together.

19. The mother commenced her job and the father looked after [X] during the day.

20. The relationship between the parties did not improve. The mother complained that the father refused to look for part-time work even though he had worked up until then and even though the parties were under financial strain. She also said that it caused her great stress that whenever the parties argued the father would threaten to take [X] to Sydney. The mother said that she was fully involved in [X]’s care in the morning and evening.

21. The father complained that the mother came home stressed from work and started arguments and was abusive and occasionally threatening to him and made threats of self-harm. The father also said that the mother became very distant from [X] and was unhelpful with his care.  

22. On 2 May 2013 the father took [X] to Sydney and commenced residing with his sister in [omitted]. After he arrived he telephoned the mother and asked her to confirm with Centrelink that he was the primary carer for [X] so that he could get a parenting payment. The mother refused to do so and on 7 May 2013 she filed an application seeking urgent parenting orders.

23. The father was served with the mother’s application on 9 May 2013. He did not file a response and affidavit however and when he attended court in Newcastle on 4 June 2013, the first return date of the matter, he asked for further time to do so.

24. I ordered that the parties see a family consultant on 4 July 2013 and Mr C spoke to the parties and prepared a memorandum to the court. However I felt constrained to allow the father time to file his documents before dealing with the mother’s interim application and I made orders that he do so and adjourned the matter to 12 July 2013 for further consideration.

25. The mother had not seen [X] since 2 May 2013 and it was ordered by consent that until the next adjourned date [X] live with the father from 3.30pm on Monday until 3.30pm Friday each week and with the mother from 3.30pm Friday to 3.30pm on Sunday each week.

26. The mother agreed on a very short term basis for the time to take place at the home of the maternal grandmother in [O]. [O] is about 40 minutes from the mother’s home in [A] and is closer to Sydney.

27. The father filed his documents as ordered and on 12 July 2013 I conducted an interim hearing. After hearing submissions I ordered that the father relocate [X]’s place of residence to within 20 kilometres of the [C] Post Office within 14 days.

28. However the interim hearing took place on a duty day and it was very late in the day by this point. I was troubled about what arrangements would be appropriate for [X] upon the father returning to the [C] area and I ordered that the parties attend a further conference with a family consultant on 19 July 2013, in the hope of receiving some assistance about appropriate orders. I adjourned further consideration of the matter to 30 July 2013.

29. On 26 July 2013 the father filed an amended response seeking to have the order requiring him to relocate [X]’s place of residence to [C] discharged. He claimed that he had looked at five rental properties in the nominated area and put in an offer for one unsuccessfully.

30. On 30 July 2013 I heard further submissions and at the conclusion of the interim hearing the mother through her counsel offered to pay $1,000.00 to a real estate agent to meet any requirement that the father pay a bond.

31. Once again it was very late in the day by the time submissions were concluded and I was obliged to reserve my decision.

Submissions

1. The mother’s counsel conceded that in the light of the father’s evidence that he had been unable to obtain suitable rental accommodation it was open to me to discharge the order made on 12 July 2013 that he relocate [X]’s place of residence to the [C] area. He asked me not to do so however and pressed me to make orders in terms of the mother’s application.

2. The mother’s counsel submitted that the mother had overall been [X]’s primary carer and that even during the period of something less than three months between February 2013 and May 2013 when she was working full time she had been fully involved in [X]’s care in the morning and evening.

3. The mother’s counsel submitted that an arrangement whereby [X] lived with the mother and spent time with the father during the day each weekday and on alternate weekends would best meet his needs. He said however that if this arrangement did not meet with the father’s approval or he declined to return to [C] the mother would reduce her working hours to ensure [X] was properly cared and he pointed to the fact that the maternal grandmother had given evidence that she would help care for [X] during the week as needed.

4. The mother’s counsel submitted that the mother’s mental health was well managed. She was compliant with her medication and was holding down a full time job which was an indication in itself that she was coping well. She was stressed by the current court proceedings but had sought appropriate assistance for her stress.

5. The mother’s counsel submitted that allegations about the mother’s cannabis use which the father made in his second affidavit should not concern the court as she had done a drug test in July 2013 and it was “clean”. The mother alleged that the father had also used cannabis during the relationship.

6. The mother’s counsel strongly submitted that it was quite feasible for the father to obtain affordable rental accommodation in the [C] area given the mother’s evidence about the very large number of affordable properties which were advertised for rent in the area. He also noted that although the father had family in Sydney and had told Ms R during the parties second attendance on a family consultant that he was reliant on them there was nothing in his affidavits to suggest that he had frequent contact with them or was reliant on them for assistance.

7. The father’s solicitor submitted that whatever the outcome of the dispute about where [X] lived the father should remain [X]’s primary carer as he had been his primary carer since at least February 2013 and on the father’s case earlier.

8. It was the father’s case that the mother’s mental health was not well managed as she claimed. The father alleged that throughout the relationship the mother had self-harmed and talked about suicide. Her mental health was particularly poor after [X]’s birth and during the period between February 2013 and May 2013 she was very distant from [X] and left all of his care to the father, at the same time being relentlessly verbally abusive to the father and occasionally threatening him.

9. The father’s solicitor submitted that the father had made a genuine attempt to find a rental property in the [C] area and had been unsuccessful and there was no guarantee he would be able to find anything suitable. She said that if the court still insisted that he move further north with [X] he should be permitted to live somewhere in the Newcastle area rather than just in the [C] area which would widen the potential pool of rental properties.

10. The father’s solicitor submitted however that the best outcome for [X] would be if the father was permitted to remain living in Sydney with [X], with [X] spending time with the mother as proposed in the father’s amended response. The father had a rental property in Sydney now and had established routines for [X] and wanted to remain near his family.

11. The father said that he feared for his safety if he lived in [C] as the mother had threatened to send someone to hurt him.

12. During submissions I reminded the mother’s counsel and the father’s solicitor that I was not bound by the options proposed by either of the parties and that another option open to me was to order that provided the father re-established [X]’s residence in the [C] area the child live with the father on weekdays and the mother on weekends. This was tentatively suggested by Mr C in the first 11F memorandum although Mr C envisaged the father perhaps remaining in Sydney. 

The matters in dispute

1. The matters in dispute between the parties include the following:

   ·Whether the mother’s mental illness is well-managed and the implications of her mental illness for her future role in the care of [X].

   ·Whether [X] would be safe if he spent unsupervised time with the mother.

   ·The nature of the mother’s relationship with [X] and whether it was close and caring or distant and troubled.

   ·Whether the father had been verbally abusive and controlling to the mother during the relationship.

   ·Whether the mother had been verbally abusive to the father and threatened to harm him during the relationship.

   ·Whether the father was reliant on his family in Sydney for support.

   ·The nature and extent of the mother’s past drug use and whether the mother was currently a cannabis user or a user of synthetic illicit drug substitutes.

   ·The nature and extent of the father’s past drug use and whether the father was currently a cannabis user or a user of synthetic illicit drug substitutes

   ·Whether the mother had threatened to have other people kill or harm the father and was likely to carry the threat into effect

2. In interim proceedings it is often impossible to determine where the truth lies about matters in dispute.

3. That does not mean that allegations can be ignored, and sometimes in the face of concerning allegations the court needs to err on the side of caution and make orders to protect children in case allegations turn out to be true.

1. It is also important however for the court not overreact to alarming allegations. The court must make some assessment probabilities, because there is always a risk that one or both of the parties has exaggerated or selectively reported or even fabricated evidence in order to achieve their preferred outcome.

2. I need to very carefully consider the allegations made by the father in this matter and to make some assessment of probabilities, because on the one hand I cannot afford to place a 16 month old child at risk and on the other hand, as the mother’s counsel rightly pointed out, the effect of my acceding to the father’s proposal would be tantamount to permitting the relocation on a final basis and perhaps forever altering the mother’s role in [X]’s life without any proper investigation having occurred about whether this was the best outcome for [X].

The undisputed matters

1. There are usually some matters which are not in dispute in interim proceedings and they can assume significance when the court is unable to make findings about disputed matters.

2. In the current proceedings the following matters are not in dispute:

   i)The mother suffers from a mental illness which was first diagnosed when she was in her teens.

   ii)The father unilaterally relocated to Sydney with [X] on 2 May 2013.

   iii)The father was [X]’s primary carer between 11 February 2013 and 2 May 2013.

   iv)The mother was [X]’s primary carer between his birth on [omitted] 2012 and October 2012, was the stay at home parent between October 2012 and early January 2013 and the primary carer between early January 2013 and 11 February 2013.

[X]’s best interests

1. Any orders I make about [X] must be orders determined by treating his best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act set out the matters to which I must have regard in order to determine [X]’s best interests.

2. In interim proceedings it is often very difficult to make findings about the s.60CC (2) & (3) matters but I need to make what findings I can.

3. The primary considerations in s.60CC(2) are:

   i)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ii)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or  family violence.

4. S.60CC(2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to subsection (2)(b).

5. [X] will benefit from having a meaningful relationship with each of his parents and I am frequently told that for a child of [X]’s age the best way to set a solid foundation for this (in a separated environment) is for the child to spend the majority of his time with one primary carer and to spend frequent time with the other parent.

6. If the father remains in Sydney [X] will be primarily cared for by the father and will be able to see the mother either each weekend if the courts orders it or three out of four weekends as proposed by the father. This might well be enough to set a solid foundation for his future relationship with both parents.

7. The mother’s proposal that [X] live with her and spend time with the father during the day and on alternate weekends would also give both parents ample time with the child in which to establish a good relationship with him

8. There was no evidence that [X] was at risk of abuse neglect or of being exposed to or subjected to family violence in the father’s care.

9. I am not satisfied that there is an unacceptable risk of [X] being abused or subjected to or exposed to family violence in the mother’s care.

10. Ms R reported the father as telling her on 19 July 2013 that the mother had threatened to kill him and the child which no doubt alarmed Ms R, but as far as threats to [X] are concerned the evidence in the father’s affidavit was first that on one occasion prior to separation the mother stared at [X] in a way which suggested she might harm him and second that she said that she could understand why people killed their families.

11. The mother denied ever having any thoughts of harming [X]. The father’s interpretation of the look could all too easily be a fanciful assumption by the father arising out of the tense and unhappy relationship between the parents and the father gave no context for the other statement other than that it was said during an argument.

12. [X] has never come to any harm in the mother’s care, even when she was at home full time with him in [P] between March and October 2012 and her post-natal mental health problems were at their most acute and there was nothing in the evidence in my view which suggested that she might harm him.

13. The father alleged that the mother had threatened during arguments to have him killed by ‘some nasty blokes her father knew.’ The mother said that this was a fabrication. I cannot make any findings about this but assessing probabilities I note that there is nothing in the evidence (such as assault convictions or ADVO applications) to suggest that the mother is a person prone to being violent to others. I am unconvinced that the father is at risk of harm from the mother.

14. The implications of the mother’s mental health for her capacity to care for [X] are best dealt with in the context of assessing the mother’s parenting capacity rather than by endeavouring to decide whether they might lead to [X] being neglected.

15. As for the additional considerations, [X] is too young to have a view about parenting arrangements.

16. The next additional consideration is the nature of the relationship of the child with each of his parents and any other persons, including grandparents and relatives of the children.

17. The mother maintained that she and [X] had a close and loving bond. The father alleged that the mother was distant and unengaged with the [X] between February 2013 and May 2013 when she was working full time. I cannot place weight on this evidence given the risk that it is coloured by the father’s strong wish to achieve his desired outcome of remaining in Sydney. 

18. It seems somewhat improbable, given that the mother acted very promptly to file an application for parenting orders after the father’s unilateral relocation.

19. The maternal grandmother gave evidence that the mother related well to [X] on the weekend visits since orders were made on 4 June 2013. I have to treat this evidence with some caution also however as I cannot be certain in the absence of cross-examination that the maternal grandmother has not been selective in what she has reported.

20. The father brought [X] with him to the 11F child dispute conference on 19 July 2013 at my suggestion, as I felt that it would help me if the family consultant made a comment on how the child seemed with both parents. Ms R commented favourably on [X]’s interaction with the father but for some reason failed to mention [X]’s interaction with the mother. I cannot complain about this however as I did not mention in the order I should what I hoped to achieve by the father bringing [X] to the 11F child dispute conference.  

21. I note that the father is content for the mother to spend regular time with [X] (albeit at the home of and under the supervision of the maternal grandmother) which suggests to me that his evidence about the mother’s relationship with [X] may be unreliable.

22. The mother did not dispute that [X] had a good relationship with the father. I cannot make any findings about [X]’s primary attachment but he has been in the primary care of the father for one reason or another for the last 5 months.

23. [X] has been spending time with the mother at the maternal grandmother’s home since June 2013. I cannot comment on the quality of their relationship but the maternal grandmother is certainly not a stranger to [X] and the father is happy enough to leave [X] with the maternal grandmother.

24. The next additional consideration is the extent to which the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to him, to spend time with the child or communicate with the child. 

25. The father was critical of the mother for failing to take up an offer he made for her to spend time with [X] between 2 May 2013 and 4 June 2013. The mother said that she did not do so because the father made it a condition of this occurring that she not touch [X] or pick him up, a condition she considered it would be impossible to adhere to.

26. I cannot make any findings about whether the mother’s claim is true but given the mother’s rapid action in filing for parenting orders I do not accept that she was uninterested in seeing [X] after 2 May 2013.

27. I must have regard to the extent to which the parents have fulfilled or failed to fulfil their obligations to maintain the children.

28. The father complained that he had applied for a child support assessment and the mother was assessed to pay only $32.00 per week, hardly an adequate amount given her income.

29. The mother only started work four months prior to end of the last financial year so it could well be that through no fault of her own she has been assessed to pay on the basis of a tax return submitted for a period when she was not working.

30. The fact that the mother has not offered to pay more than the assessment is hardly surprising given that she has been pursuing since almost the date of separation (which is not very long ago) an order that [X] live with her. 

31. I must have regard to the likely effect on any changes in the child’s circumstances including the likely effect 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.

32. Since his unilateral relocation the father has established himself in Sydney. He is living in a rental property and is taking [X] to play group. [X] is only 16 months old however and it would make no difference to him if he lived with the father in Sydney or the father in [C], absent the father struggling to cope in [C].

33. I do not accept that there is reason to believe that the father would struggle to cope in [C]. He was able to obtain a private rental in Sydney and there is no reason why he could not do so in [C]. The mother provided evidence of dozens of rentals available in the [C] area. The mother has offered to contribute $1,000.00 to enable the father to pay a bond.

34. The father told Ms R that he wanted to stay in Sydney because he had family support there but he made no reference to this in his first affidavit, and in his second affidavit he merely stated that it was helpful to be close to family because of his financial circumstances without giving any examples of why this was so.

35. The father provided absolutely no evidence about any interaction with family or about any concrete assistance his family were providing to him and no members of his family filed an affidavit. I cannot be satisfied that the father would find it difficult to cope in [C] because his family are in Sydney.

36. The father said that he was reluctant to return to [C] because the mother had threatened to have him harmed by others including by bikies. The mother denied this and said that the only ‘bikie’ she knew was her father who belonged to the Vietnam Veterans Motorcycle Club.

37. I cannot make a definitive finding about these allegations but the evidence is not compelling. As I observed during submissions I can make an order for the personal protection of the father and in the light of the very general allegation about fear of harm I consider that this would be an adequate response to the father’s concerns. 

38. It will be of benefit to [X] if he returns to live in [C] because he will be able to spend time with both parents without the cost and difficulty of lengthy car travel nearly every week

39. An outcome which sees [X] living with the father in [C] on an interim basis and spending weekends with the mother is likely to be beneficial for [X].

40. The mother proposed that [X] live with her and spend time with the father each day while she was at work and on alternate weekends.

41. This bears some similarity to the arrangements for [X] prior to separation and it might be a satisfactory outcome for him provided first that there was no issue with the mother being able to care for him overnight and in the morning each weekday and second that the father was content with it and not resentful about being used as a day care facility.

42. It would require interaction between the parents twice each day however. They were continually fighting prior to separation and are not currently on good terms. There is an unacceptable risk of this arrangement exposing [X] to conflict at the present time.

43. A third possible outcome in these proceedings is an order that if the father refuses to return to [C] that [X] live with the mother.

44. This would be the outcome least likely to be beneficial for [X] in the short term, but if it meant that his relationship with the mother was preserved and preserved at the best possible level in the longer term it is an outcome which might overall be beneficial for him.

45. I must consider 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.

46. This is an important issue. [omitted] where the father lives and [A] where the mother lives are only 2 ½ hours driving distance apart but the father is on Centrelink benefits and Ms R reported as follows:

    The father currently receives single parents support pension and said he is struggling financially paying rent, costs associated with caring for the child and petrol associated with travelling from Sydney to [omitted] every weekend.[1]

    [1] S.11F Memorandum 19/7/2013

47. The costs if the father had to travel to [A] every week would be even greater.

48. The father proposed to alleviate this problem by making the time with the mother three out of four weekends rather than every weekend and by asking the mother to share the driving but a better way to alleviate the problem would be for the father to return to [C].

49. Mr C tentatively suggested that perhaps [X] live with the father during the week and the mother on the weekend. This would impose a burden on both the parties and [X] if the [X] remained in Sydney even if the driving was shared, and the mother’s time with [X] would be cut short by many hours each weekend because of the travel.

50. The mother works from 9.00am to 5.00pm on weekdays and her time on Friday under the father’s scheme would not in reality begin until about 5.30pm. The father proposed that the mother deliver the child to him in Sydney at the conclusion of the time which would mean that the mother’s time with the child would end in any meaningful sense at about 1.00pm on Sunday.

51. Time in a car can have some benefits when children are older because (if the children are not watching DVD’s or playing hand held computer games) it is possible to have a conversation with them, but [X] is a baby. Frequent long car trips would be of no benefit to [X] or to either parent in terms of interaction with [X].

52. The fact that the mother has a mental illness has some relevance here. The mother is stressed by the father’s action in unilaterally relocating with [X] and it is important that she not be stressed. If [X] remains at a distance from the mother and the mother struggles to cope with this outcome and her mental health deteriorates this may have long term implications for her relationship with [X].

53. I must consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including his emotional and intellectual needs. 

54. The father gave alarming evidence about the mother’s mental health. He said that she had engaged in self harm on many occasions during the relationship by cutting herself with scissors and banging her head on walls and that she often talked of suicide. She suffered post natal depression after [X]’s birth and had to be forced to go to hospital for assessment on two occasions.

55. On 30 July 2013 the father’s solicitor tendered a discharge summary from [omitted] Hospital and urged me to have regard to the fact that the mother had presented at hospital on 13 June 2013 stressed and anxious and admitting to having thoughts of suicide.

56. Luckily the document was tendered because a full reading of it makes it clear how easily matters can be distorted. The entire record says as follows:

    Presenting Problem

    38 year old lady referred by GP with a history of depression and anxiety on a background of recent relationship breakup and separation from 14 month old son

    Ms Feist was assessed by the mental health team in the emergency department.

    She complained of frequent crying, poor appetite, and lack of concentration and decreased sleep in the last four weeks.
    Ms Feist also stated that she was experiencing symptoms of anxiety.

    She described her mood as being very low. Ms Feist reported having fleeting thoughts of self harm but no definite plan. She has good insight into her condition and felt that she would not do anything to herself as she was concerned about her son and how much grief it would cause her son. There were no homicidal ideation and no formal thought disorder. Ms Feist did not have any auditory or visual hallucinations and there were no symptoms of psychosis.

    Impression – Exacerbation of symptoms of anxiety and depression due to situational crisis

57. The mother’s evidence was that since her mental health problems emerged when she was in her teens she had always sought medical assistance and taken her medication and had always been able to hold down a job. There was nothing in the evidence to suggest that this was incorrect.

58. The mother ceased taking her mood stabiliser medication prior to [X]’s birth and this had an adverse impact on her mental health. Dr T, whom the mother saw when she was pregnant, predicted that she would suffer post-natal depression and this in fact occurred.

59. The father gave some alarming evidence about the state of the mother’s mental health after [X]’s birth but it is important to note that between March and October 2012 he went to work every day and left [X] in the mother’s care and there was absolutely nothing to suggest that [X] came to any harm or was inappropriately cared for during this period.

60. The mother’s evidence was that in October 2012 she re-commenced taking Lithium and began seeing a local social worker once a week and that her mood and coping capacity improved. I was not pointed to anything in the medical records produced on subpoena from Queensland which indicated that the mother had ongoing difficulties with her mental health after October 2012.

61. In January 2013 the mother returned to NSW with [X]. The father did not join them for some weeks and there was nothing to suggest that [X] was inappropriately cared for during this period.

62. The father gave alarming evidence about the mother’s state of mind and her interaction with [X] after she returned to work in February 2013 but I have to consider the possibility that the father is exaggerating to gain an outcome. The mother provided an affidavit from one of her superiors at work which confirmed that she was performing her job well despite the stress she was under as a result of the father’s actions in unilaterally relocating. She also provided evidence from a work colleague from an earlier job to confirm that she had performed well in a stressful work environment.

63. Since returning to [H] the mother has been under the care of a GP and she has recently seen a psychologist and is attempting to re-engage with a psychiatrist.

64. Ms R noted that when she saw the parties on 19 July 2013 the mother appeared stressed but that is hardly surprising given the situation she faces. At the same time the mother has continued to attend work and her presentation at the hospital on 13 June 2013 confirms that she is willing and able to seek help when she feels she needs it.

1. I incline to the view that the father is overstating the difficulties with the mother’s mental health. She has a solid employment history, she is not in denial about her mental health problems and she has a history of seeking medical assistance and taking medical advice. The high risk of the mother suffering post-natal depression was predicted before [X]’s birth and the need for the mother to cease taking her mood stabilising medication during her pregnancy obviously did not help. There was no evidence of [X] having come to harm in her care after his birth.

2. I am not persuaded that there is any justification for an order that the mother’s time with [X] be supervised on account of her mental health.

3. I have to have some reservations about whether the mother would cope on her own caring for [X], working full time and managing her mental health issues. However the maternal grandmother is more than willing to help the mother. She has a driver’s licence, is not working and has been helping care for another grandson since he was a baby (he is now about 5).

4. Nevertheless the mother is working full time and the father is not, and this makes the father the preferred person at present to have primary care of [X] provided that other factors such as a lack of willingness to promote the mother’s relationship with [X] or his refusal to move even if that would alleviate a travel burden for [X] and the parents do not stand in the way of this outcome.

5. In his second affidavit the father alleged that the mother was a heavy cannabis user, and there is reference in the medical records which were tendered to the fact that the mother’s cannabis use was an issue of concern for her treating doctors.

6. The mother admitted past cannabis use and said that she and the father had used cannabis together and that the father had purchased it.

7. The mother said that she had not used cannabis since separation save for once about two months ago and she voluntarily did a drug test in July 2013 and the result was ‘clean’.  However the mother on her own admission has a long history of cannabis use and even if she has ceased using it more or less completely at present it is very early days.

8. I cannot determine to what extent if any the father used cannabis in the past and whether he continues to do so.

9. Drug use has implications for a parents’ capacity to care for a child, it has financial implications and in the mother’s case may have implications for her mental health.

10. I intend to order that neither parent uses illicit drugs while the child is with them or within 12 hours of the child coming into their care and to order that each parent undergo supervised chain of custody urinalysis within 48 hours of the date of these orders. Further drug testing orders may well be necessary as the matter progresses.

11. The father did a satisfactory job of caring for [X] on a day to day basis while he and the mother lived together and he has been properly providing for [X]’s day to day needs since separation.

12. The father has a blind spot about [X]’s emotional needs however. He showed no regard for [X]’s emotional needs when he relocated him 2 ½ hours away from the mother.  All the father was thinking of when he did this was his own convenience.

13. I must have regard to the child’s maturity, sex, lifestyle and background. 

14. [X] is 16 months old. He has no concept of time and no relationship with his mother that he is likely to remember if their relationship ended at this point in his life. He needs to spend regular frequent time with her to maintain a relationship with her. 

15. If [X] were older and had an existing strong relationship with the mother built up over a period of years he might be able to maintain a satisfactory relationship with her if he lived at a distance from her and had regular telephone or skype communication in addition to less frequent face to face time, but he is far from being at an age when this would be satisfactory.

16. It is also not in [X]’s best interests to be subjected to regular lengthy car trips unless this simply cannot be avoided.

17. I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.

18. The father demonstrated a particularly poor attitude to the child and the responsibilities of parenthood when he relocated to Sydney and put 2 ½ hours driving distance between [X] and his mother. 

19. I must consider whether there is any family violence.

20. Neither party made any allegations of physical violence. The mother alleged that the father was controlling during the last part of the relationship but she provided no evidence which would allow me to make a finding that this was the case.

21. The father alleged that he feared for his safety as a result of looks the mother gave him and threats she made but his interpretation of the looks could be fanciful and the mother denied making the threats. I cannot make a positive finding at this interim stage that the mother engaged in family violence during the relationship.

22. There are no family violence orders.

23. I must consider any other relevant matter and it is relevant to ask whether the mother could relocate to Sydney rather than try to compel the father to return to the area of her choosing.

24. This may be an issue at trial, but it would be unreasonable to ask the mother to consider moving to Sydney at this stage. She has a job in [C] which she only recently obtained and it is too early to ask whether the mother could solve the problem of a dispute over the place where the child lives by agreeing to relocate herself.

25. Another relevant matter is that I am concerned about the father’s actions since 2 May 2013 and about what they may mean for [X]’s relationship with the mother in the future.

26. First, the father unilaterally relocated.

27. Second, he was served with the mother’s application on 9 May 2013 but he did not file a response prior to the first court date of 4 June 2013 although he had ample time to do so. I was forced to adjourn the matter for a further four weeks to allow time for the father to file a response and affidavit.

28. Third, the matter was listed for further consideration at 9.30am on 30 July 2013 and when the matter was called on the father was not in attendance. The father’s solicitor told me that she had tried to contact the father many times to find out where he was but that his phone was switched off.

29. It was not until the father’s solicitor sent him a text message telling him that the court was considering issuing a warrant for his arrest that he contacted his solicitor. He claimed that he had got his days mixed up and he agreed to come to court but I was then not able to start the interim hearing until very late in the day and because submissions did not conclude until 5.50pm was unable to hand down an oral decision.

30. It may turn out that these things are not significant but at the moment these things, together with the fact that it could turn out that the mother’s claim that the father would not let her see [X] after the relocation except on an unworkable condition, create a concern in my mind about whether the father understands that the mother is as important to [X] as he is and about whether he can be trusted to ensure that [X]’s relationship with the mother is promoted if [X] lives with him at a distance from the mother.

Parental Responsibility

1. Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that his parents have equal shared parental responsibility for him, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence. 

2. The court may decide not to apply the presumption if it considers that it would not be in the child’s best interests for the presumption to apply.

3. In interim proceedings the presumption applies unless the court considers that it would not be appropriate in the circumstances for it to apply.

4. There are no reasonable grounds on which I could be satisfied that either party has committed any act of family violence or has abused [X]. Both parties sought an order for equal shared parental and that is the order I intend to make.

Conclusion

1. As I intend to make an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act to consider whether [X] spending equal time or alternatively substantial and significant time with each of his parents is in his best interests and reasonably practicable and if so to consider making an order of that kind.

2. At [X]’s age and given the current relationship between the parties equal time would not be in [X]’s best interests. It would however be in [X]’s best interests if he spent substantial time with each of his parents. At his age whether this time occurs on week days or weekends will make no difference to [X].

3. The father’s proposal that [X] live with him and spend weekends with the mother would seem in general terms well suited to [X]’s needs. The mother works full time and the father is available to care for [X] during the week.

4. It could be argued that if this is satisfactory then the father should be permitted to stay in Sydney where he is now comfortably established, because even if he does [X] can still spend time with the mother either each weekend or three out of four weekends.

5. However if the father remains in Sydney the amount of weekend time will be considerably reduced because of the need to travel, [X] will be put through extensive travel, the parties might well find the travel tiring and unwelcome themselves over time and on his own evidence the father will struggle to afford it.

6. It might be that after due enquiry it is determined that it is in [X]’s best interests to live with the father in Sydney, but I cannot determine that at an interim stage, and I consider that it would be in [X]’s best interests that the situation which existed prior to separation of him being in close proximity to each of his parents be restored to the greatest extent possible.

7. This is consistent with the decided cases. In C & S  Warnick J. said as follows:

   In my view it is clear that the interests of any child or children including the children here, are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.[2]

   [2] C & S

8. In Morgan & Miles Boland J. was dealing with an appeal from interim orders made by a Federal Magistrate following a unilateral relocation by one of the parents.  She observed that:

   It appears to me that the very difficult issues involving a relocation make it highly desirable that, except in cases of emergency, the arrangements which will be in a child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.[3]

   [3] Morgan & Miles

9. If the father had applied for an interim order that he be permitted to live in Sydney with [X] before he left [A] on 2 May 2013 he would not have been successful. There is nothing in his affidavits to suggest that he can only survive with family support available to him in Sydney, and nothing to suggest that a rental property would not have been as readily available to him in [C] as in Sydney had he looked for one.

10. I do not accept that the father needed to relocate 2 ½ hours from the mother for his personal protection or for [X]’s personal protection.

11. If the father would not have been successful had he done things properly and applied for a court order he ought not to be in a better position, and [X] disadvantaged, because he usurped to himself the right to make a major long term decision for [X] and unilaterally relocated.

12. I intend to order that [X] live with the father during the week but only provided that he returns to [C] and I will give the father a further two weeks to do so. If he cannot find a rental property in that time he may need to look at moving into some other short term accommodation to tide him over until he does.

13. I intend to order that upon the father returning to [C], [X] lives with him and spend time with the mother every weekend.

14. This will be a good outcome for [X] because he is used to being in the father’s care each weekday and the father is doing a competent job caring for him. [X] will be able to spend time with the mother from Friday to Monday morning without being subjected to extensive travel and without it creating an undue financial strain for the parents, and it will be substantially longer weekend time than it would be if the travel had to be factored in.

15. I have considered to whether I should make an order that [X] also spend some time with the mother one evening after work each week but I do not intend to order that at present.

16. The parents’ relationship is not the best and the more changeovers there are the higher the risk of [X] being exposed to conflict. The mother does not finish work until 5.00pm and [X]’s bedtime is 7.30pm according to the mother so the time would be of limited value at present.

17. The order I propose to make will mean that the father does not have any weekend time with [X] and this will need to be revisited in the future, but [X] is well below school age. The father could visit family in Sydney occasionally with [X] during the week and it is not beyond the bounds of possibility that if things settle down and the parents relationship improves that they will be able to agree to some occasional variations to the orders.

18. If the father does not relocate to [C] within a further two weeks I intend to order that [X] live with the mother until he does so.

19. I do not accept that the mother is as disabled by her mental health problems as the father would like me to believe. The maternal grandmother is ready willing and able to help the mother and I would certainly hope that the mother could take some short term leave from work to help [X] adjust. The mother said that she would reduce her working hours if need be.

20. This outcome would not be ideal for [X] in the very short term, but if the father is not willing to return to [C] and allow future parenting arrangements for [X] to be resolved with a proper consideration of the competing proposals and without one parent imposing an outcome on the other this raises grave concerns in my mind about his attitude to the mother and his respect for her as a parent and about his capacity to provide for [X]’s emotional needs. I consider that if the father refuses to return the long term benefit to [X] of the court acting robustly is likely to outweigh any short term adjustment difficulties he may face.

21. Both parents are seeking final orders that [X] live with them in their chosen location and I do not know what the outcome of this matter will be on a final basis and different considerations will apply at a final hearing and there will be an opportunity for the evidence to be tested. I am satisfied that in the meantime however the orders I intend to make are in [X]’s best interests.

22. The father sought an order that the mother commence attending on a psychiatrist and that she provide the father with blood test results to confirm that she was taking Lithium. I do not intend to make those orders. The mother has never been in denial about her mental health, she has always sought medical advice and there was no evidence of her having a history of being non-compliant with medication.

23. The father’s solicitor asked that the father be given liberty to relocate to an area closer to Newcastle, but she was vague as to the proposed area and there was no evidence to suggest that this would benefit [X] and I do not intend to do as was proposed.

24. I intend to order that for the next two weekends the existing orders continue that is that [X] spend time with the mother from 3.30pm Friday until 3.30pm Sunday at the home of the maternal grandmother. This is not because I consider that the mother’s time needs to be supervised but because it will involve less driving for the father if the time occurs at [O] rather than [A] and it will mean only one change needs to be made to the parenting arrangements in the immediate future.

25. I intend to adjourn the matter to 9.30am on 27 September 2013 for further consideration. Among other things it may be necessary on that day to consider ordering that the parties be tested for the use of synthetic illicit drug substitutes.

26. For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding one-hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date:  8 August 2013