Garwood & Shipton
[2021] FedCFamC1F 117
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton [2021] FedCFamC1F 117
File number(s): ADC 4995 of 2018 Judgment of: BERMAN J Date of judgment: 11 October 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of a child – Where the child lives with the mother and only has contact with the father electronically - Where the mother has unilaterally relocated the child’s residence intrastate – Where the father seeks the mother return the child’s residence to within fifty kilometres of Adelaide – Where the father seeks supervised time with the child – Where the mother seeks that the father’s application for time be adjourned until after the release of a therapy report – Where the mother also seeks the discharge of the electronic communication order – Where the child suffers from separation anxiety – Where previously attempted supervised contact has been generally unsuccessful – Where the child is to undertake therapeutic intervention pursuant to previous orders – Where it is premature to make the orders sought by the father – Where the electronic communication should continue – Where the mother’s circumstances allow her to readily travel to Adelaide and so there is no reason to relocate. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel v Marvel (2010) 43 Fam LR 348
Division: Division 1 First Instance Number of paragraphs: 83 Date of hearing: 15 September 2021 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: Stanley & Co Lawyers Counsel for the Respondent: Dr Brasch QC Solicitor for the Respondent: Barnes Brinsley Shaw Lawyers ORDERS
ADC 4995 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARWOOD
Applicant
AND: MS SHIPTON
Respondent
ORDER MADE BY:
JUSTICE BERMAN
DATE OF ORDER:
11 OCTOBER 2021
THE COURT ORDERS BY CONSENT:
1.That without admission, and except in so far as it is necessary for the purposes of these proceedings, the father be and is hereby restrained by way of injunction from:
(a)Advising anyone that the mother is proposing to sell her business of C Company and D Company;
(b)Contacting or attempting to contact any potential purchasers of the business of the mother, C Company and D Company or their agents;
(c)Causing, allowing or permitting or asking any other person to contact or attempt to contact any potential purchasers of the business of the mother, C Company and D Company or their agents;
(d)Contacting or attempting to contact any employee of the businesses of the respondent, C Company and D Company;
(e)Causing, allowing or permitting or asking any other person to contact any employees of the businesses of the mother, C Company and D Company;
(f)Contacting or attempting to contact the broker engaged by the mother to sell the mother’s businesses C Company and D Company, namely Mr E of F Company or any of his employees;
(g)Contacting or attempting to contact any lessor, or agent of the lessor, of any premises occupied by C Company and D Company for any purpose;
(h)Causing or permitting any other person to contact or attempt to contact the lessor, or agent of the lessor, or any premises occupied by any C Company and D Company business for any purpose;
(i)Making any denigrating statement by any means of publication in respect to either C Company or D Company.
THE COURT FURTHER ORDERS:
2.That paragraphs 5 and 6 of the orders sought in the father’s Application in a Case filed 16 June 2021 be listed for mention to 20 December 2021 at 10.00 am.
3.That the parties keep each other informed of their home address and telephone number and advise the other within 48 hours of any change occurring.
4.That paragraphs 2, 3, 7 and 8 of the Application in a Case filed 16 June 2021 and the Response to an Application in a Case filed 6 September 2021 be dismissed.
5.That the father be at liberty to provide to Ms G, Psychologist, the following further documents:
(a)Application in a Case filed by the father on 16 June 2021 (but sealed on 21 June 2021);
(b)Affidavit filed by the father on 16 June 2021;
(c)Response to Application in a Case filed by the wife on 6 September 2021; and
(d)Affidavit of the wife filed on 6 September 2021.
6.That each party provide to the court at the commencement of the hearing on 20 December 2021, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
7.That the mother file and serve a financial statement within 28 days of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garwood & Shipton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
Mr Garwood (“the father”) and Ms Shipton (“the mother”) are unable to resolve their differences in respect of the future parenting arrangements for X born in 2018 (“the child”).
By Amended Initiating Application filed 16 December 2019, the father seeks that the parties have equal shared parental responsibility for the child and that her care is shared between the parties on a week about basis.
The father also seeks a declaration that the parties were in a de facto relationship between mid-2015 to late 2017 and upon such declaration being made then the net property of the parties should be divided on a 90/10 basis in favour of the mother.
By Amended Response filed 2 April 2020, the mother seeks sole parental responsibility for the child and that she spend time with the father on a supervised basis at a Children’s Contact Centre not more than once per month for a period not exceeding two hours.
The mother seeks a declaration that a de facto relationship never existed between the parties and as such the Amended Initiating Application with respect to property should be dismissed.
The proceedings were transferred from the Federal Circuit Court of Australia to the Family Court of Australia by Order of Judge Kelly on 17 November 2020.
Orders made until further order on 17 November 2020 provide for interim parenting arrangements summarised as follows:
(1)The mother provide to the father, each fortnight, an email updating the general care and development of the child.
(2)That the parties facilitate interaction and communication between the father and the child via the Houseparty app on two occasions each week at 10.00 am Sunday and 4.30 pm Wednesday.
(3)That the mother ensure that:
(a)The child is visible to the father during the communication sessions;
(b)The child is encouraged to interact with the father; and
(c)The child is in a quiet environment free from other distractions.
(4)That the parties jointly instruct a psychologist suitably qualified to engage with the child taking into account her age and to assist with her apparent separation distress and/or anxiety as recommended by Ms B in her family assessment report.
(5)That the parties ensure the child engages in therapeutic intervention of approximately six months duration and if possible at weekly intervals followed by a therapeutic review at the conclusion of six months to determine whether the child is ready to commence spending supervised time with the father.
(6)That the parties shall reach agreement as to the identity of the psychologist within 21 days and that they will each be responsible to contribute one half of the costs associated with the therapeutic intervention.
By Application in a Case filed 16 June 2021, the father seeks that the mother return the child to a place of residence not more than fifty kilometres from the Adelaide CBD and that she be subject to an injunction restraining her from changing the child’s principle place of residence thereafter.
In addition, the father seeks the following orders:
5.That [the child] spend time with the father for a period of 90 minutes each Saturday and Sunday from 9.00am until 10.30am to take place at the [H Childcare Centre] [or] such other locations as the parties may agree in writing for 6 months with the time spent increasing to a total of 4 hours each weekend with the times by agreement of the parties and, in default of agreement, for two hours Saturday and Sunday from 9 am until 11 am with the time to be spent wherever the father nominates […].
6.That order 2 of orders made 17 November 2020 be amended such that the HouseParty App communication occurs on each Tuesday and Thursday at 10am for a period of no less than 10 minutes each time. In the event that a HouseParty session does not occur, make-up time shall be arranged between the parties within 24 hours of the session not occurring.[1]
[1] Application in a Case filed 16 June 2021, page 7.
By her Response to an Application in a Case filed 6 September 2021 the mother seeks the following:
1.That paragraph 5 of the Orders sought in the applicant’s Application in a Case filed 16 June 2021 be adjourned for further consideration until after the release of the Therapy Review Report, for which the parties have engaged [Ms G], as provided for in paragraphs 4 and 5 of the orders of Judge Kelly dated 17 November 2020.
2.That save and except for the adjournment of paragraph 5 of the applicant’s Application in a Case filed 16 June 2021 pursuant to the order contained in paragraph 1 herein, the applicant’s Application in [a] Case filed 16 June 2021 be dismissed.
3.That paragraphs 2 and 3 of the Orders of Judge Kelly dated 17 November 2020 be discharged.[2]
[2] Response to an Application in a Case filed 6 September 2021, page 3.
BACKGROUND
The mother does not concede the existence of a de facto relationship. The father asserts that the parties commenced living together in 2015 and separated in late December 2017. The mother denies that they lived in a de facto relationship at any time and alleges that she was the victim of sexual assault by the father in early 2015, his unlawful trespass on her property in late 2017 and that the father stole money from the mother’s business between 2015 and 2018.
The mother contends that the father was abusive, manipulating and controlling and that she fears him. The father denies the mother’s allegations and says that there has been an exhaustive investigation as to the mother’s allegations which have not resulted in any charges being laid.
The father considers that the mother seeks to disrupt and make difficult the father establishing a relationship with the child.
The parties are not agreed as to the extent to which a relationship existed between the father and the child. The mother asserts that from mid-2018 until late 2018 the father was not able to develop a positive relationship with the child and that subsequent attempts following the Court orders made in 2018 and 2019 have been unsuccessful. Supervision both by the paternal grandparents, the wife’s sister and at a Children’s Contact Service did not allay the child’s anxiety.
The familiarisation sessions facilitated by Ms J and attended by the child and the mother raised issues of apparent anxiety and distress.
Whilst the parties are not agreed as to the reason for the child’s opposition to engage with the father, it is agreed that the last physical interaction occurred in late 2019.
The parties appear to agree that the child may well suffer from separation anxiety. There is some uncertainty as to the parameters of the child’s anxiety. Given the agreement of the parties that the child’s anxiety needs to be ameliorated before a more frank assessment can be undertaken as to the appropriate parenting orders to be made, the child’s circumstances and possible diagnosis is made more complex by a disagreement as to whether the child is traumatised because of her interaction with the father prior to late 2019 or by her separation anxiety being considered at the very high end of the scale.
There is some uncertainty as to whether the importance of the child’s separation anxiety is only relevant to the mother’s ability to comply with orders of the Court or whether there is a general issue of the child being able to easily separate from the mother for other purposes, in particular the child’s future education and the need for the child to be able to socialise with the father’s family, friends and other activities that do not necessarily involve the mother.
A review of the relevant materials lends weight to a diagnosis that the child suffers from separation anxiety. K Service prepared a report following the supervised contact at the Children’s Contact Service on 20 July 2019. It must be remembered that at that time the child was only one year of age. There is no suggestion that there was any overt or inconsiderate behaviour by the parties but the supervised time did not go ahead because the child was determined to be anxious, evidenced by her crying and an inability for the child to settle. The child’s return to the mother was settling.
A further attempt of supervised contact at K Service on 3 August 2019 was unsuccessful in being able to separate the child from the mother to spend time with the father.
By order of Judge Bender on 12 August 2019, Ms B (“Ms B”) conducted a Family Assessment and published a report dated 13 November 2019.
Ms B noted that there were allegations of family violence and abuse, in particular that the father had sexually assaulted the mother, had engaged in intimidating behaviour by entering her home without consent and had misappropriated funds from her business.
Ms B identified the following child safety and wellbeing factors:
•Concerns that the father engaged in harsh parenting methods and this differed from the mother’s parenting style.
•Allegations that the child was displaying significant separation anxiety and was struggling to separate from the mother.
•Allegations that the mother was influencing the child’s emotional wellbeing and causing the child to remain anxious.
•The child remains breastfed and cannot separate from the mother for extended periods of time.[3]
[3] Family Assessment of Ms B dated 13 November 2019, page 8.
In her evaluation, Ms B said that it was possible for the child to separate from the mother and over a period of time feel comfortable in the father’s care. Ms B recognised that the mother displayed increasing anxiety as to the requirement that the child engage with the father and that some of the child’s anxiety may be a reflection of the mother’s presentation.
A significant impediment to the child being able to properly engage with the father is the ongoing acrimony between the parties, the inherent mistrust and the unresolved allegations of the mother as to the father’s behaviour.
Ms B recommended that the father engage with the child for two one hour sessions per week with the mother to use her best endeavours to settle the child into the environment and to assist in the child’s transition to the father’s care. Over time it was hoped that the child would be able to tolerate increasingly longer periods away from the mother and with the father.
Observed supervised time between the child and the father occurred on 22 and 23 December 2019 and 20 February 2019. In addition, there were ten familiarisation sessions on 3, 4, 10, 16, 18, 23 and 30 January 2020 and 1, 13 and 15 February 2020. The observed interaction and familiarisation sessions were met with, at best, limited success. Some visits were not able to proceed in that the child was not able to separate from the mother and on those occasions when the child did spend time with the father it could not be said that there was fulsome engagement between them.
Orders made directed to the parenting arrangements for the child have been significantly influenced by the view that the child’s separation anxiety or distress is not within the normal accepted range of anxiety that a very young child might experience when attempts are made to separate the child from the primary care giver.
Orders made on 21 November 2019 required the parties to engage an infant psychiatrist to provide an assessment of the child directed to separation anxiety or distress.
The mother was also ordered to engage in personal therapy with Ms G or Ms L in relation to the child’s separation anxiety with the family assessment report of Ms B be provided to the therapist.
The focus on the child’s separation anxiety and distress was a continuing thread as is evident from order 5 of orders made 7 April 2020 where the parties were to jointly instruct a psychologist who was “suitably qualified to engage with a child of [the child’s] age and assist with her apparent separation distress or anxiety”.
On 29 July 2020, orders were made that Mr J (“Ms J”) supervise the father’s time with the child:
(1)Each Wednesday from 9.00 am until 10.00 am; and
(2)Each Saturday from 9.00 am until 10.00 am.
Ms J published a report on 23 September 2020. She considered that it was important that the child develop a sufficient level of security with Ms J in order to be able to separate from the mother and transition to spending time with the father.
As at the date of the report, Ms J did not consider that the child was yet able to tolerate separating from the mother for any period longer than a few minutes.
Ms J recommended that the child benefit from long term therapy, possibly for as long as six months. She considered that the premature introduction of time with the father may cause a regression of the progress that had been made with the consequence that the therapeutic process would not be able to continue.
The order of 17 November 2020 brought to account Ms J’s report as reflected in the following order:
4.The parties jointly instruct a psychologist suitably qualified to engage with a child of [the child’s] age and assist with her apparent separation distress and/or anxiety as recommended by [Ms B] in her family assessment report and to address the following concerns identified by [Ms J] in her recent report:
(a)[the child’s] attachment, mental health, development and therapeutic needs ideally from a trauma and attachment informed framework;
(b)to assist [the child] to develop a sufficient sense of security with someone outside of her circle of security in order to maximise the success of the instigation of supervised time spending periods with the father;
(c)in the event the psychologist determines [the child] has experienced trauma, in relation to premature separation from the mother, [the child] engage in trauma processing therapy to process the trauma related to these experiences, prior to commencing supervised time with the father.
The concern that arises from the order is that it now identifies a requirement that the child undergo further therapeutic intervention provided that the therapist has experience in trauma processing therapy.
I am not satisfied that there is evidence that the child’s separation anxiety should be seen through the lens of trauma which would require a further extended period of therapeutic intervention. As at 17 November 2020, the child was two years and four months of age. The evidence that supports a process of intervention predicated on the child experiencing trauma or being traumatised is scant.
The parties attempted to negotiate the identity and joint instructions to be given to an appropriately qualified psychologist.
Ultimately, Ms G was agreed upon and the process of trauma therapy is soon to commence.
The father is aggrieved that the process of appointing Ms G has not occurred in a timely fashion and that it is a reflection of the mother’s overarching intent to interfere with the process and to do all things she can to resist a stage being reached where the child will resume spending time with the father.
The mother rejects the father’s assertion and whilst acknowledging that significant time has now passed (nearly one year), she considers it is a reflection of the necessary investigation required to determine a suitably qualified therapist to engage with the family.
I do not propose at this stage to make a finding as to whether the delay in the appointment of Ms G is a consequence of the mother’s reluctance to engage with the process or that it was an unexpected consequence of the orders made by the Court that the nominated therapist should have a particular skill set, namely the treatment of trauma in children.
The father is frustrated with the delay in the progress of the matter. It is easily understood that he is anxious and keen to resume a relationship with the child in case further delay renders him as a stranger to the child and not a parent. It is for that reason and also his belief that the mother is not prepared to support his relationship with the child that the father seeks orders for the child to spend time with him whilst the therapeutic process with Ms G unfolds.
My focus must be upon the proper needs of the child. Again, it is to be noted that the child is now three years of age. The majority of her life has been consumed by assessment, observation and therapeutic intervention. More is yet to come.
At this stage, the orders that have been made confirm the Court’s position that the child suffers from separation anxiety. This must be dealt with not just before an assessment can be made as to how the child will transition to spending time with the father. An important consideration is that as the child becomes older she will need to separate from the mother for a range of various reasons consistent with a child’s normal development.
Given that the parties are agreed that the child demonstrates separation anxiety at a significant level, the process as proposed by the earlier orders must be permitted to proceed. The purpose of the therapeutic intervention with Ms G is to enable the child to gain a level of resilience that would enable her to separate from the mother and engage with a child expert or psychologist for the purposes of mapping out a transition to spending time with the father.
It would be the antithesis of what is intended by the Court orders to put in place orders for the child to spend time with the father. The delay may well be unwelcome but I do not lose sight of the potential for adverse impact on a child of this age by the very process that she is being asked to undergo. It may well be that to put in place orders that the child spend time with the father as he seeks would be to exacerbate what is already a precarious position for the child.
There is merit in the orders sought by the mother that the father’s application should be adjourned to a date after Ms G has had an opportunity to give consideration to the child’s presentation and circumstances.
The mother seeks that paragraphs 2 and 3 of the Orders made 17 November 2020 be discharged. Those orders were made by consent and required the parties to facilitate interaction and communication between the father and the child via the Houseparty app on two occasions each week at 10.00 am Sunday and 4.30 pm Wednesday.
Whilst the father sought more expansive orders, he seeks to retain his ability to communicate with the child remotely.
It is a relevant consideration that in April 2021 the mother and the child relocated from her previous residence at P Town to a property at Q Street, M Town (“the M Town property”).
It is conceded that neither the mother nor her solicitors provided the father with notice of the mother’s intention to relocate the child’s principle place of residence . There is uncertainty as to the full extent of the impact of the mother’s relocation on the child.
The orders to facilitate the communication between the father and the child were made by consent but informed by the various reports undertaken to assess the extent of the child’s separation anxiety.
It is not surprising that at age two the child may well have had difficulty in engaging with the father via electronic communication. It is reasonable to assume that as the child becomes older and is more aware of her circumstances, remote communication may well be able to be better tolerated.
It is not axiomatic that because the mother contends that she has had difficulty in encouraging the child to interact with the father via the Houseparty app there now exists a basis for the order to be discharged.
It is an important consideration that the principles underlying the objects as set out in s 60B of the Family Law Act 1975 (Cth) (“the Act”) seek to ensure that children are able to experience a meaningful involvement and relationship with both of their parents to an extent that is consistent with their best interests.
If the communication order is discharged there will be no avenue for the child to maintain a relationship with the father. Whilst it is a reasonable summary of the mother’s position that she does not consider the father has anything to offer the child and therefore there should not be any time spent, that is not a concluded outcome.
The circumstances at present are very much embryonic in that the purpose of the child attending upon Ms G is for therapeutic assistance to lessen any anxiety arising from separation with the mother, with at least one of the aims being to enable a proper exploration of the manner in which the child can transition to spending time with the father.
In circumstances where there is no opinion provided to the Court that speaks to the advantage or disadvantage of the child being required to communicate with the father pursuant to the order, until the therapeutic intervention supported by the parties has been implemented, it is premature to make orders either in terms of the father’s application for physical time to be spent with the child or the mother’s application seeking that the communication order be discharged.
THE UNILATERAL RELOCATION OF THE MOTHER
The father seeks that the mother relocate to a principle place of residence that is not more than 50 kilometres from the Adelaide CBD and that thereafter she be restrained from relocating the child’s principle place of residence to a location that is more than 50 kilometres from the Adelaide CBD.
The mother resists the father’s application and contends that she has purchased the M Town property in which she and her children reside. She has transferred her personal and business affairs and the P Town property has now been sold.
It is a relevant consideration that the mother is in a financial position to comply with orders of the Court, initially in terms of the child’s attendance upon Ms G but also in terms of any order to facilitate the child spending time with the father.
It is not permissible to make the order that the father seeks to simply return to the pre-relocation status quo without a consideration of what is in the child’s best interests.
INTERIM PARENTING
In Marvel v Marvel (2010) 43 Fam LR 348, the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
[121] …
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said:
61.… In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE LAW
Section 60B of the Act outlines the objects and principles underlying Pt VII of the Act, namely:
(1)The objects of this Part are to ensure that the best interests of children are being met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interest):
(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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly 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; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations as outlined in s 60CC(2) of the Act are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations as set out in s 60CC(2), the Court is to give greater weight to the considerations set out in sub-paragraph (b).
Given the parties consent to the various therapeutic interventions for the child, it is reasonable to find that the parties consider some relationship with the father needs to be explored which may then assist in determining whether the child’s interests will be served by coming into contact with the father.
It is the father’s position that prior to separation he was bonded to the child and that there have been occasions when the child has responded well to him even though he considers that the mother’s interference is at the core of the child’s reluctance to separate.
The mother’s relocation requires consideration in respect of the likely effect of any change in the child’s circumstances.
The most obvious concern is if the mother’s relocation will have the impact of thwarting a future order of the Court.
That circumstance has not yet occurred. The mother openly acknowledges the importance of the child engaging with Ms G and to that extent, the Court can have confidence that she will facilitate the process.
The mother also argues that whilst it may not be her preferred position, she will comply with whatever order the Court makes.
The mother understands that there is a potential consequence to her of her unilateral move in circumstances where other options existed. The mother’s current residential arrangements are likely to be subservient to an order that is predicated upon the best interests of the child. Simply put, the mother should not consider that her move to M Town will of necessity be a barrier to the child spending time with the father. I suspect the mother has received advice to this effect.
At present no issue arises. I have not interfered with the order for electronic communication and I have rejected the father’s application for an extension of time during which the child will spend with him.
Given the mother’s circumstances allow her to readily travel between M Town and Adelaide, I do not see a reason to require that the mother relocate the child to an area within a radius of 50 kilometres from the Adelaide CBD.
CONCLUSION
The parties have reached substantial agreement in respect of the father being restrained from in any way interfering with the mother’s business enterprises and in particular in respect of any proposed sale of same.
Whilst the intended duration of therapeutic intervention was six months, I propose to bring the matter back within three months to consider how the therapeutic process is developing and if necessary make interim orders to assist the parties and the child.
I make orders as appear at the commencement of these reasons.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 11 October 2021
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