G and B (No.2)
[2002] FMCAfam 482
•20 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & B (No.2) | [2002] FMCAfam 482 |
| FAMILY LAW – CHILDREN – Proposal to remove children to another State – parenting orders – contact orders – planned relocation of mother – place of residence of child when one parent wishes to relocate – proposals of parents about residence and contact with child – mother seeks that there be no order for contact by the father – best interests of the child paramount consideration – child aged ten months at date of hearing – mother primary carer. PRACTICE AND PROCEDURE – Children – parenting order – proposals of parents – powers of discretion of court not confined by proposals of parents. WORDS AND PHRASES – “compelling reason”. Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2) AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852 |
| Applicant: | A D G |
| Respondent: | J B |
| File No: | PAM 1633 of 2002 |
| Delivered on: | 20 December 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 5, 6 and 8 November 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitor for the Applicant: | Watson Stafford |
| Counsel for the Respondent: | Mr Sweet |
| Solicitor for the Respondent: | J Spence & Associates |
ORDERS
All earlier parenting orders are discharged.
The child T A B born 7 January 2002 is to reside with the Respondent mother who is to have responsibility for the care, welfare and development of the said child.
The parties are to do all such things and make all such arrangements as may be necessary with the Central West Contact Service at H Park to permit the Applicant father to participate in a supervised contact program.
The father is to have contact with the said child as follows:
(a)at the premises of the Central West Contact Service for periods of up to two hours a week at such times and on such days as the Central West Contact Service shall arrange, such contact to be supervised by the Central West Contact Service, until 30 June 2003;
(b)for a period of four (4) hours each Sunday until 31 December 2003;
(c)from and after 1 January 2004, from 10.00 am to 4.00 pm each alternate Sunday.
The mother is to deliver the child at the commencement of each contact period and is to collect the child at the conclusion of each contact period from the premises of the Central West Contact Service.
The father is not to arrive at the premises of the Central West Contact Service any earlier than five (5) minutes prior to the commencement of contact and he is not to remain at or in the vicinity of the said premises at any time after the conclusion of each contact period.
The mother is restrained from changing the child’s place of residence outside any point North of Brooklyn, West of Lithgow or South of Port Kembla prior to 1 July 2004 without leave of the Court.
The father is restrained from entering or going within 200 metres of the mother’s place of residence at any time.
The father is restrained from approaching or contacting the mother at any time other than through his legal representative.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1633 of 2002
| A D G |
Applicant
And
| J B |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of a baby boy called T for an order for contact with him. T was born on 7th January 2002, so, at the time of hearing, he was less than a year old. By his Amended Application, filed on 11th July 2002, the father asks for orders that he should have contact with the child each alternate weekend and for half of each school holiday period. He also seeks an order that the child should live with mother.
The mother filed an Amended Response on 5th November 2002. In that Amended Response, as well as seeking orders that the child T should reside with her and that she should have the sole responsibility for his care, welfare and development, she was said to seek the following orders:
“3.That the Mother be permitted to forthwith relocate to Queensland with the child T A B to enable her to reside at the residence of Mr and Mrs J F at M Drive, H Island, Queensland and, thereafter, to reside either with the F’s or, alternatively with her parents (when they relocate in Queensland) or, alternatively in self-contained accommodation in Queensland within the general area of the Gold Coast and its environs.
4.That the Mother, at all times, keep the Father notified of her place of residence in Queensland.
5.That in the event that the court declines to make order 3 and 4 herein that the Father have contact with the said child for a period of two hours, such contact to be supervised and to take place at the Central West Contact Service.”
Unfortunately, it appeared that those were not the orders the mother actually sought. After the Applicant’s case was closed, Mr Greenaway, counsel for the Applicant, commenced to cross-examine the Respondent at (according to the transcript) 3.41 pm. He immediately asked the Respondent about the orders that she was seeking, and she agreed that she wanted an order that she be permitted to relocate to Queensland with the child. However, when he asked her if she also sought the order that she should keep the father notified of her place of residence in Queensland, she disagreed. She said that she was not aware of that proposed order:
“(Mr Greenaway) Is that the order that you’re seeking?
(Respondent) No, I wasn’t aware of that Order.
Do you want that Order made? ---No I don’t”[1]
[1] Transcript 5/11/02 page 48
When the cross-examination moved on to the subject of the proposed Order 5 in the Amended Response, that, in the alternative, the father have supervised contact, the mother said that she did not want that order, either:
“(Respondent) In my original application I requested no contact, and that’s what I have been applying for, and I – I have not read this document before today.
(Mr Greenaway) In the event that you’re not permitted to relocate to Queensland, what Order are you seeking?
That T’ father have no contact with T.”[2]
[2] Transcript 5/11/02 page 49
The mother went on to say that she did not instruct her solicitors “to put that on the application” and that the orders sought came as a complete surprise to her. After further questioning, it was established that the mother’s position was that there should be no order for contact, but, if the Court did make an order for contact, then the mother would not object to the contact taking place at the Central West Contact Service. The mother did not consent to any order that the father’s sister should be the contact supervisor.
The hearing proceeded on that basis. I would comment, however, that it is highly unsatisfactory for a case to proceed on the basis that the Respondent is not actually seeking the orders that are in the Amended Response, so that the Court and the Applicant are not aware of what orders the Respondent really seeks until after the Respondent’s case has commenced. There was no application to reopen the Applicant’s case, and I am satisfied that, in the long run, the Applicant has not been prejudiced by this development.
Background
The parties commenced a relationship in late 1999; there is no agreement about the precise date, and the relationship had an ‘on-again-off-again’ quality about it. The child T was born on 7 January 2002 and the parties commenced to reside together on 9th February. They separated on 12th April 2002 and the mother made an application for an Apprehended Violence Order against the father. An Interim Order was made on 17th April 2002. No final order was ever made.
There had been no contact between the father and the child since separation, so the father commenced these proceedings by means of an Application filed on 3rd May 2002. The mother filed a Response seeking interim residence. She moved to Queensland and stayed with friends.
An interim hearing took place before Federal Magistrate Barnes on 15th July 2002. On 16th July, Her Honour made orders until further order to this effect:
(a)that the child should reside with the mother;
(b)that the parties should arrange an appointment with the Central West Contact Serviced at H Park to assess the suitability of the father to take part in a supervised contact program;
(c)that the father was to have contact by means of the Contact Service for periods of up to two hours per week;
(d)that the mother should be restrained from relocating the child’s residence outside the Sydney metropolitan area; and
(e)that the mother should have 14 days to comply with that restraining order.
The mother sought leave to appeal against those orders, but no appeal proceeded. The matter was returned to my docket, and I made directions for final hearing, including ordering a Family Report pursuant to section 62G of the Family Law Act.
Evidence
The father gave evidence by affidavit and was cross-examined by Mr Sweet, counsel for the mother. The father also called evidence from his sister, M A. The father’s evidence was to the effect that there was an admittedly volatile relationship between himself and the mother, but that he denies the allegations of violence towards the child and the mother, and the allegations of non-consensual sex. He said it was an accident that the remote control for the television set in the hospital fell down and hit the new-born child on the head. He said that he assisted with the care of the child, including bathing him and changing his nappies. He denied all allegations of cruel behaviour towards the child.
The father referred to the mother’s application for an Apprehended Violence Order against him, commenced after the parties separated. He deposed in his affidavit that the application was heard by the F Local Court on 23rd May 2002. He says that the mother gave evidence but the court found that no prima facie case had been made out and dismissed the application. The mother agreed in her affidavit that the application was dismissed.
The father admitted in his affidavit and, in greater detail in cross-examination, that he had insisted that the mother breast-feed the child whilst the car in which they were travelling was moving at a speed of 107 or 108 kilometres an hour. The mother had asked him to pull over to the side of the road and stop the car so she could feed the child, but he refused. The child was unrestrained whilst the car was moving, and the father admitted that he was wrong in his actions.
The father admitted that he had used a riding crop and a pair of handcuffs in his sexual relationship with the mother, but said that the mother had actually purchased the items for him to use. He said he used the handcuffs once and the whip “Twice or three times when she’d asked me”.[3] He denied that he had ever had intercourse with the mother without her consent.
[3] Transcript 5/11/02 page 43.
It was put to the father that he ill-treated the child by attempting to drown him in the bath, attempting to suffocate him by pinching his nose, and forcing a banana down the child’s throat. He denied these allegations.
The father’s sister, M A, gave evidence. She said in her affidavit that the mother had confided in her that she and the father were having fights. She said that the mother had never complained to her about being assaulted. She deposed to her willingness to supervise any contact between the father and the child. In cross-examination, she denied that the father was ever moody, describing him as a calm person, yet she admitted that she had said in her affidavit that she had told the mother that he was sometimes “temperamental and moody”. I found her explanation of how a person could both be moody and not be moody quite unconvincing. Her explanation as to why it was safe for a child under the age of 12 months to travel in a vehicle whilst not in “a proper car seat” I found equally unconvincing. She told the court that her brother asked her if she would be a supervisor for his contact with the child. I am not satisfied from her evidence that she would demonstrate the necessary impartiality required of a supervisor, and I am aware that the mother does not consent to Mrs A acting in that role.
The mother’s evidence was at times sensational. She said that the father had threatened the child’s life on occasions and she was convinced that he would do so. A little while later, in cross-examination, the mother said that the father had not threatened the child’s life in as many words, but had done so by his actions. She said that he would “suffocate” (I presume that she meant ‘attempt to suffocate’, as the child is still alive) the child on a daily basis by holding his index finger and thumb over the child’s nose, and then went to say that he would do this twice daily.
The mother said that the father had said to her when the parties went to court for the interviews for the Family Report, “I’ll be getting him soon”. Her interpretation of those words was that the father was threatening to kill the child soon.
The mother said that she was so frightened that the father would kill the child that she never left the two of them alone together, except for two occasions. Her explanation for leaving the child alone with the father, whom she suspected of attempting to kill the child on more than one occasion, was that “On both occasions T was asleep and I didn’t want to disturb him.”[4]
[4] Transcript 5/11/02 page 57
It would appear to me that if the child were asleep it would be easier for a man with murder in his heart to kill the child, especially by suffocation. I am not at all persuaded that I should accept the mother’s evidence of the father’s intention to kill the child, especially as she said that he attempted to do so twice a day.
The mother went to say that she believed that the father appeared to the writer of the Family Report to be pleased to see the child only to put on a good show for her. The following exchange took place:
“Are you saying that where the author of this report says that Mr G appeared to be happy to see his child, you say that it was a complete act put on for the author of the report?---Yes, I do.
And you’re saying that he wouldn’t have been happy to see T at all?---Well, he didn’t get to finish off the job, so that’s why he’s going through the Court process now.
I’m sorry? He didn’t get to finish him off?---He didn’t get to finish off the job by suffocating T and killing both of us.
And you tell the Court that because he didn’t get to finish off the job and suffocate T and you, that’s the reason why he’s now before the Court?---Yes”.[5]
[5] Transcript 5/11/02 pages 60 and 61
I should say that I did not accept the mother’s evidence in this regard.
I observed her demeanour in the witness box and I listened most carefully to this highly sensational evidence, having spent a number of years on the Bench in other courts dealing with crimes of violence, including homicide. I found her evidence to be far-fetched and unsupported by any corroboration.
The mother’s mother, L B, gave evidence to the effect that she had seen the father act in ways that were not consistent with good parenting, such as placing his finger in the baby’s mouth, causing him to become distressed, or swinging him around after removing him from his cot. She and her husband intend to relocate to the G C area of Queensland.
In cross-examination, Mrs B told the Court of harassing behaviour by the father in driving past her house. She said that she had heard “screaming and yelling” outside.[6] Her daughter had reported suspicious motor vehicles to the police.
[6] Transcript 6/11/02 page 131.
The mother called evidence from J F and Denise F[7], who live at H Island in Queensland. They live on a secured estate with security guards. They deposed to having the mother stay with them and they described how she was a restless sleeper and initially showed other signs of agitation. They have assisted her financially and they have offered her employment.
[7] Their names are incorrectly spelt in the Amended Response
Both Mr and Mrs F gave evidence by telephone. A significant amount of their affidavit material was inadmissible for various reasons and was the subject of successful objections. It appears that they drafted their own affidavits, or one of them did, as the language used in them is very similar, even down to the same grammatical errors. If solicitors are content to let witnesses prepare their own affidavit material and submit it to the Court, complete with hearsay, speculation, irrelevance and opinion evidence, they can hardly be heard to complain if substantial parts of the affidavits are rejected.
I ordered a Family Report for these proceedings. Julia Schwarz, a Regulation 8 Welfare Officer, prepared this Report. For the purpose of compiling the Report, Ms Schwarz interviewed the mother and the father, and observed each of them with the child.
Ms Schwarz described the father as being resentful about being prevented from seeing his son and upset about the accusations made about his behaviour. The mother told Ms Schwarz about her fears that the father would harm the child. She presented as being fearful and intimidated by the father.
Ms Schwarz observed the father with the child. She described him as smiling happily and expressing incredulity at how much the child had grown since he had last seen him. He changed the child’s nappy and walked him around the room. Ms Schwarz described him as affectionate, holding T in a “caring, containing way.” His manner of handling the child was assured and occasionally a little brusque.
Ms Schwarz proceeded to observe the child with the mother, but she described an incident where the mother’s mother and grandmother had become angry at the sight of the father’s sister, Mrs A, and complained loudly and angrily to the security officers at the Court about the father’s alleged threatening actions. Ms Schwarz was of the view that their loud complaints caused the child to become distressed.
The mother was observed to be affectionate and loving with T. Ms Schwarz described her as “caring and attentive towards T, and seemed to anticipate his needs”.[8] Ms Schwarz was of the opinion that the mother seemed to take delight in tending to the child and was calm in her manner of relating to him.
[8] Family Report, page 13.
Ms Schwarz recommended that there should be contact between the father and the child, but it should be supervised at first, progressing to unsupervised contact with supervised changeover. Supervision was necessary, she considered, because of the level of acrimony between the parents, the genuine and high degree of anxiety and fear exhibited by the mother towards the father, and the extreme vulnerability of the child because of his young age.
On the other hand, Ms Schwarz believed that there was insufficient evidence to support the proposition that there should be no contact between the father and the child. She considered that there was a “pressing need” for contact to occur as early as possible.
In her oral evidence, Ms Schwarz told the Court that, if the mother moved to Queensland and the father remained in New South Wales, it would be very difficult for a child of T’s age to develop a relationship with the father. If there were to be frequent travel, she felt that would be a stressful regime for both mother and child.
If there were to be contact of a lesser frequency than once a fortnight, Ms Schwarz felt that the contact would not work because of the memory capacity of an infant of this age. She saw this sort of contact as potentially stressful for the child:
“If there was contact occurring and it was so widely spaced apart as to be practical for everybody to be able to participate in this interstate regime, if it was happening and the child wasn’t developing an attachment then I would think that would cause some stress to the child because they would – it would be like meeting this person for the first time each time they had that contact and I think that would be confusing and difficult for the child. If an attachment was starting to develop, then I think that again would put the child in a very difficult position because they would experience that separation and confusion at an age where they’re not really developmentally mature enough to receive and understand an explanation for what was happening…”[9]
[9] Transcript 6/11/02 page 119
Ms Schwarz explained that if the child did not move interstate until the age of 18 months or two years having had regular contact with the father, the result would be different. By that stage, she said, a relationship would hopefully have been established and it would be more sustainable. The child’s current age, she said, was “a crucial age for the development of a relationship.”[10]
[10] Transcript 6/11/02 page 120
Principles to be applied
The principles which apply to matters of this nature are well settled, and recent decisions have not altered the attitude that the Court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) sets out the principles underlying the object of part VII, which are, except when contrary to the child’s best interests:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
In this matter, as in any matter where the Court is required to make parenting orders, the Court “must regard the best interests of the child as the paramount consideration” (s.65E). Section 68F sets out the matters which the Court must consider in order to decide what the child’s best interests are.
The High Court of Australia has considered the relocation question in AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852. It is an error for a court to require the party who wishes to relocate with the child to demonstrate “compelling reasons” to justify the proposed relocation. The welfare of the child is the paramount, but not the only, consideration. At the same time, it is equally an error for a court to require the other party to provide compelling reasons, or at least a preponderance of reasons, for not permitting the party who wishes to relocate to do so (SMG v RAM (2000) FLC 93-020).
The Full Court of the Family Court has more recently considered the issue in A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035, where the court considered the earlier decisions of Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 and Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876. The principles to be applied are, in summary:
(a)the best interests of the child are the paramount, but not the only consideration;
(b)a court cannot require the parent who wishes to relocate with the child to demonstrate “compelling reasons” for the relocation;
(c)the court has to evaluate each of the proposals advanced by the parties;
(d)relocation cannot be separated from the issue of residence and the best interests of the child;
(e)the evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child; and
(f)the court must consider the relevant s.68F(2) matters in respect of each proposal.
The Full Court went on to say:
“It is to be expected that reasons for decision will display three stages of analysis:
1A court will identify the relevant competing proposals;
2For each relevant s.68F(2) factor, a court will set out the relevant evidence and submissions…
3On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not the sole consideration.”
It is no longer the case that the court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent, as was previously held in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 (at paragraph 9.63). It is still a consideration, however, that in evaluating the competing proposals, the court may consider evidence that the proposed relocation would be of benefit to the child as much as to the parent, whilst the inability of a party to move may impose significant pressures upon that parent:
“A very important aspect of a child’s best interests is to live in a happy family environment…Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household” (at page 84,222).
The High Court of Australia again considered the question of relocation in U v U [2002] HCA 36; (2002) 29 Fam LR 74, where a mother wished to leave Australia with the child to return to her country of origin. The Court is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals. The court has to look at the matters set out in s.68F. The objective is always to achieve the child’s best interests.
The competing proposals in the light of Section 68F(2)
I am required to give consideration to the relevant s.68F (2) factors as they apply to the parties’ proposals. First of all, I should set out what the competing proposals are.
The father’s proposal is that the child should not relocate to Queensland and that he should have contact with him. He accepts the fact that contact would need to be built up over time.
The mother’s proposal is that there should be no contact and that she should be permitted to relocate the child’s residence to Queensland, without keeping the father informed of his future whereabouts.
The Court is not bound to consider only the proposals put by the parties, but may consider other arrangements for the best interests of the children (U v U (supra)). In this case, there does not appear to be any other realistic proposal for consideration. The father does not intend to relocate his own residence to Queensland. If the mother were to stay in New South Wales, she would still wan there to be no contact. If the Court were to order contact, she would want that contact to be supervised, but by the Contact Service, not by the father’s sister.
These proposals must be considered in the light of the matters in s.68F(2).
S.68F (2)(a) – any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding).
This child was born on 7th January 2002. He is too young to express any wish.
S. 68F(2)(b) – the relationship of the child with each parent and with other persons.
The mother appears to have a strong and loving relationship with the child. The father was observed to interact with the child in a caring way, but there has been no contact for months, so there is very little relationship between father and child at this stage. If there is no contact, the situation will remain unchanged. If there is contact but in Queensland, contact arrangements will be difficult and stressful for the child, according to Ms Schwarz. Only contact on a regular basis with the child and the father seeing each other regularly will allow a relationship to develop.
S.68F(2)(c) – the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent.
If there is no contact, there will be no opportunity for the child to have any relationship with the father. If the mother moves to Queensland, contact will be stressful, and it is unlikely to allow a relationship to develop. If the mother remains in New South Wales and the father sees the child regularly, then a relationship can develop.
S.68F(2)(d) – the practical difficulty and expense of a child having contact with a parent.
There would be little difficulty and expense in having contact if the child remains in New South Wales and the father has contact through the Contact Centre. A move to Queensland would involve expense in airfares and accommodation. Strictly speaking, there is no difficulty and expense in a “no contact” arrangement.
S.68F(2)(e) – the capacity of each parent to provide for the needs of the child.
The mother has the capacity to meet the child’s needs, except that she does not recognise the child’s need for a relationship with his father. The father has had only limited contact with the child, but seems to show a capacity to meet the child’s immediate physical needs, going by the observations of Ms Schwarz. There is some criticism of his actions when the child was a baby, but I have rejected the mother’s evidence that the father poses a threat to the child’s safety.
S.68F(2)(f) – the child’s maturity, sex and background.
T is still only a toddler. There is no issue about the fact that he should reside with his mother. This factor is a constant across all proposals.
S.68F(2)(g),(j)(etc) – the need to protect the child from physical or psychological harm, family violence etc.
The mother alleges that the father poses a threat to the child’s physical safety. I have already rejected her contention, as there is no evidence of this fact. There is no Apprehended Violence Order in force. The mother appears to be fearful of the father, nevertheless. If the father did pose a threat to the child’s safety, there would be some justification for the ‘no contact’ proposals, but there is no such evidence.
S.68F (2)(h) – Attitudes to parenting.
The mother was observed by the Regulation 8 Welfare Officer as interacting well with the child and anticipating his needs. Against this, she is adamant that there should be no contact. The father has been reported to have acted in an inappropriate way in the past, but he seeks to be a father to this child and has a realistic view about the need for contact to be built up. The father has no contact with his child F, from a previous relationship, which he says he regrets.
S.68F(2)(k) – The order least likely to lead to further proceedings.
It is often difficult for a Court to predict the Orders that would be least likely to lead to further proceedings. The mother is adamant that there should be no contact. The father has persisted with his application.
There are no other facts or circumstances that I consider to be relevant.
Conclusions
The mother’s proposal is that there should be no contact with the father and that she should be permitted to relocate his place of residence to Queensland. The significant disadvantage about the ‘no-contact’ proposals is the fact that the child would be deprived of contact with his father when there is no evidence to justify that situation. This would be contrary to the principles set out in s.60B(1) “children have a right to know and be cared for by both their parents” and s.60B(2) “children have a right of contact, on a regular basis, with both their parents.” The evidence does not show that it would be contrary to the child’s best interests not to know or have contact with his father. Accordingly, the proposals that there should be no contact between father and son cannot be acceded to, as they do not appear to be in the child’s best interests.
If there is to be contact, the mother’s proposal that she should be permitted the child’s residence to Queensland is problematic at this time, according to the unchallenged evidence of the Reg. 8 Welfare Officer, Ms Schwarz. She stated firmly that the child was at a crucial age for developing a relationship with a parent, and contact involving frequent interstate travel would be stressful. Infrequent contact would be unlikely to permit the relationship to develop. It would appear that the mother’s proposal to relocate the child’s residence to Queensland carries major disadvantages at this stage in the child’s life.
The father’s proposal that there should be regular contact in New South Wales offers the advantage that it would allow a relationship to develop with the father. No other proposal offers this advantage. There is the disadvantage that there is acrimony between the parties, but this can be at least partly remedied by orders that will remove the need for the parties to deal with each other face-to-face.
Ms Schwarz did express the view that, if contact were to commence on a regular basis, then a move when the child had attained the age of 18 months or two years would allow a relationship not only to develop, but to survive the move. It is for this reason that I do not propose to restrain the mother from relocating the child’s residence indefinitely, but only for a period of time until 1 July 2004, when he will be nearly two years and six months old. By that time, with regular contact, there relationship should be firmly established.
I have also allowed a fairly wide area within which the mother can reside with the child. The area would allow her to reside in the Wollongong area if she chose, but not to move North of the Hawkesbury River.
There is, to my mind, a clear need for supervised contact. The mother has fears of the father, and she would be unable to deal with the concept of unsupervised contact at this stage. The parties should stay away from each other, and if contact is to take place through the contact centre, there should be no need for the father to go anywhere near the mother’s residence, as the mother’s mother alleges.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 11 March 2003
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