Haig and Nelson

[2011] FamCA 963

FAMILY COURT OF AUSTRALIA

HAIG & NELSON [2011] FamCA 963

FAMILY LAW – CHILDREN – Interim – Relocation – Where the mother and father previously had an agreement that the mother be allowed to relocate to Country E after August 2011 – Where the mother now wants to relocate to D Town with the father of her unborn child – Where the final hearing is to occur within approximately 6 months – where such a move would be overly disruptive in the circumstances of the changes that will occur in the next six months.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MRR & GR [2010] HCA 4

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Haig

RESPONDENT: Mr Nelson

FILE NUMBER: CSC 764 of 2007

DATE DELIVERED: 14 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: C Town

JUDGMENT OF: Watts J

HEARING DATE: 15 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North, SC

SOLICITOR FOR THE APPLICANT: Williams Graham Carman Solicitors

COUNSEL FOR THE RESPONDENT: Mr Tree, SC

SOLICITOR FOR THE RESPONDENT: Miller Harris

Orders

1. Leave granted to the mother, in these interim proceedings, to rely upon the affidavit of Ms N filed 11 November 2011. 

2. Order 23 made 2 July 2008 be suspended. 

3. Notwithstanding any other order and pending further order:

   3.1.B born … 2006 (“the child”) live with, spend time with and/or communicate with his parents in such manner and for such periods of time as might be agreed between the parents in writing and failing further or other agreement, in accordance with these orders.

   3.2.The child live with the father each alternate week from the conclusion of day care or school on Friday until the conclusion of day care or school on Tuesday and shall otherwise live with the mother and for that purpose the child live in the C Town area.

   3.3.The child spend equal time with his parents during school holidays by agreement and failing agreement the child be with his mother for the first half of school holidays.

   3.4.Liberty granted to the parties to apply on 48 hours notice if there is any issue arising in relation to where the child would live during the mother’s confinement for the birth of her second child and on 14 days notice for any other special days that might fall within the period between now and the final hearing.

4. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Haig & Nelson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 764 of 2007

Ms Haig

Applicant

And

Mr Nelson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother seeks an interim order that she be permitted to relocate from C Town to D Town with B born in 2006 (“the child”) who is currently aged 5.

BACKGROUND

1. The father was born in City F, Country G in 1968 and the mother was born in Country E in 1983. The father came to Australia in 1989 and the mother came to Australia in 2002.

2. The parties commenced cohabitation in C Town in the middle of 2005. There was a brief separation later that year. The parties married in C Town in 2006 and there was another wedding ceremony in Country E in the following month.

3. The parties came back to Australia in 2006 and the child was born in that year.

4. After the birth the mother was assisted by the maternal grandmother and the maternal aunt, both of whom came to Australia from Country E. The mother, the child and the maternal grandmother went back to Country E in October 2006 and the father joined them there in December.

5. The parties and the child returned to Australia in the beginning of 2007.

6. In May 2007 the parties went to the Country G for the father’s brother’s wedding; had an argument there, following which the mother went with the child to Country E and the father came back to Australia.

7. On 14 January 2007, whilst in Country E, the mother informed the father that she intended to separate. The mother returned to Australia on 17 August 2007.

8. On 14 September 2007 the father, according to the mother totally to her surprise, sought and obtained from the Federal Magistrates Court an ex parte injunction restraining either party from removing the child from C Town.  The child was placed on the Airport Watch List. 

9. On 15 October 2007, the parties, after they had involved themselves in alternate dispute resolution with a psychologist, agreed to interim consent orders which were made in the Federal Magistrates Court.  Notwithstanding the fact that those orders were interim orders, they set out long term provisions about the child’s future living arrangements.

10. These consent orders of 15 October 2007 were made upon an application made to the court with the mother and the father’s lawyer appearing. The father joined in the mother’s application for the interim orders.

11. It is the mother’s position that in October 2007 she agreed to remain in C Town until August 2011 so that the child, who was then 13 months of age, would have an opportunity to develop a meaningful relationship with his father. At that time, the father agreed that in August 2011, when the child was almost 5, the child would be permitted to move with the mother to Country E to live. He would be with his father for three quarters of all Country E school holidays, including alternate Christmas days. Other orders were made for electronic communication. The order provided that the father meet all the costs of travel. The order also covered the information that the mother should regularly send the father. Further, the order provided that upon the child reaching high school age the parents would jointly attend upon a counsellor to determine the future living arrangements of the child and the country of his high school education.

12. After the consent orders were made, the mother left for Country E and stayed there for two months. The mother then spent Christmas in the Country G with the father and the parties reconciled. The parties returned to Australia in January 2008 and lived together until they finally separated in May 2008.

13. On 2 July 2008 the proceedings concerning the child, which were never discontinued, were listed for further consideration by the Federal Magistrates Court.

14. On that day, the Federal Magistrate made the following order:

    A Notice of Discontinuance having been filed the Application filed 12 October 2007 is dismissed and the interim orders made on 15 October 2007 will be final orders.

15. The orders included an order that the child be able to live with the mother in Country E from 1 August 2011 until at least the child reaching high school at which time the parents would jointly attend upon a counsellor to determine the future living arrangements of the child and the country of his high school education.

16. In broad terms, the parties have organised the child’s living arrangements in accordance with the orders.

17. The mother’s position in relation to the current final orders is that she no longer wishes to move with the child to Country E but rather to D Town, New South Wales, and consequently she seeks on an interim basis, a suspension, particularly of order 23 made 2 July 2008.  On a final basis as an overall suite of orders, the mother wishes to have the orders of 2 July 2008 discharged.

18. In December 2008 the mother and the child holidayed in Country E for five weeks. 

19. In April 2009 the mother commenced a relationship with Mr H. The mother, Mr H and the child holidayed in Country I with the mother’s family in August 2009 and again from April to May 2010. 

20. The parties were divorced on 20 June 2010.

21. The mother spent time in D Town with the child and Mr H in September and December 2010 and Easter 2011. 

22. On 17 May 2011, the mother having already enrolled the child in the local Catholic School in D Town in February 2011, agreed also that the child could be enrolled for his preparatory year at J School. 

23. On 17 June 2011, with time running out, the mother filed an application for alteration of property.  That application is likely to be of some complexity. Both parties allege that the other has overseas assets.  No draft joint balance sheet has been prepared and I got the impression that there had not been a complete compliance with pre-action procedures, particularly in relation to disclosure of financial information by one to the other.  I requested that the parties provide an appropriate minute setting out directions that need to be complied with to get the property matter ready.  I note the property matter has a conciliation conference scheduled for 31 January 2012.

24. Currently the formal agreement between the parties is for the child to have a shared care arrangement on a 50/50 basis.  This arrangement was initially on a three night, four night, four night, three night fortnight cycle and since September 2011 there has been an oral agreement between the parties that the child be allowed to spend one week with each parent Monday to Monday.

25. It is the mother’s case that although the formal agreement is a 50/50 arrangement, the father regularly does not avail himself of that arrangement and travels instead. The father seems to accept some of what the mother says but disputes, for example, what the mother says in relation to what the ‘sign in and sign out’ records from the child’s child care centre represents by way of evidence of what time the child spends with both his parents. 

26. The parties, after the hearing by arrangement, sent to me documents being attendance records for the child at TAFE Community Day-Care between 4 February 2008 and 18 July 2008 and attendance records for the child at Child Care between 11 June 2008 and 18 October 2011. The records from the Community Centre indicated that the mother signed the child in and out of day care about 70 percent of the time.

27. In relation to Child Care, for some reason the parties were unable to agree upon what was in the primary documents.  On either version however, the sign-ins were virtually equal, with the mother signing the child out of Child Care slightly more of the time. The difference however is minimal given the period of time the child has been going to Child Care and for all intent and purposes, the records show that since June 2008 the parties have been sharing drop off and pick up of the child to the day care centre equally. 

28. The mother and Mr H’s child is expected to be born in March 2012.

29. The parties have agreed that the child will be involved with each of them in overseas travel over the 2011/2012 Christmas holidays. The parties have agreed upon the orders which will be made to facilitate that happening.

30. The father has concerns that the mother, who will be seven months pregnant, may go into an early labour and be stuck in Country E with the child.  The parties have agreed that the mother will provide the father with sufficient funds to travel to Country E to pick the child up should that circumstance eventuate.

DOCUMENTS READ AND RELIED UPON

1. The mother relied upon the following documents:

   32.1.Amended initiating application filed 3 October 2011;

   32.2.Mother’s affidavit filed 14 November 2011

   32.3.Mother’s affidavit filed 3 October 2011;

   32.4.Affidavit Ms K filed 3 October 2011

   32.5.Affidavit Mr H filed 3 October 2011

   32.6.Affidavit Mr L filed 3 October 2011

   32.7.Affidavit Ms M filed 17 October 2011; and

   32.8.Report of Ms N filed 11 November 2011.

2. Extensive material was tendered from subpoenaed records from C Town Base Hospital, psychologist Ms O, C Town community childcare and the P Medical Centre.

3. The father relied upon the following documents:

   34.1.Father’s response filed 29 July 2011;

   34.2.Father’s summary of argument;

   34.3.Father’s affidavit filed 14 November 2011;

   34.4.Father’s affidavit filed 29 July 2011;

   34.5.Affidavit of Mr Q filed 14 November 2011; and

   34.6.Affidavit of Mr S filed 14 November 2011.

4. Senior counsel for the father objected to the evidence of Ms N, a psychologist who was requested by the mother’s lawyers to provide a medico legal report. Ms N was originally asked to provide a report which included the following:

   1.Our client’s relevant history;

   2.Your diagnosis of our client’s psychological heath;

   3.Any treatment and therapies which you would prescribe for our client;

   4.The range of likely outcomes to persons with such a diagnosed condition;

   5.The range of likely outcomes to our client;

   6.Whether, in your view, you believe counselling as a treatment would alleviate the mother’s anxiety and distress should the court not permit her to relocate with the child;

   7.Any other matter which you would consider relevant.

5. Ms N was then asked to provide an addendum to her report which addressed the following questions:

   What is your view on whether our client not being able to relocate will adversely impact on our client’s well-being? If in your view it would so adversely impact upon our client’s well-being, to what extent could or would this impact upon our client’s capacity to appropriately care for the child and her (as yet unborn) second child?

6. The first issue that arose was whether or not the mother be given permission, in the context of these interim proceedings, to file evidence from Ms N, a psychologist the mother had seen for a medico-legal report. The father did not oppose the court giving the mother that permission.

7. Relevant to matters to be considered under rule 15.52(2) Family Law Rules 2004 (Cth) (“FLR”), the mother’s lawyers had previously written to the father’s lawyers suggesting that the court be asked, by consent, to make an order pursuant to s 62G Family Law Act 1975 (Cth) (“FLA”) so that a family report would be available for the hearing before me. The father’s lawyers had not responded to that request. It was in those circumstances that the mother sought her own medico legal advice. I have regard to the main purpose rule (rule 1.04 FLR). In the context of this interim application, permission is given for the mother to file that report.

8. Although the request for permission to file the report was not opposed, senior counsel for the father objected to Ms N’s report coming into evidence asserting that the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 had not been satisfied, because the psychologist had made oracular pronouncements with no reasoning exposed as to any connection between her examination and testing of the mother and the conclusions reached. Senior counsel for the father also pointed to the fact that some of the questions that had been asked in the letter of instruction from the mother’s lawyers had not been addressed.

9. The central matter in relation to which Ms N gave evidence is contained in the Addendum to the report on page 8. It is in the following terms:

   “As mentioned, [Ms Haig] has not managed to leave the marriage to [Mr Nelson] unscathed; there are strong indicators on the PAI that [Ms Haig’s] underlying “tension and apprehension” could be the result of unresolved “past traumatic events and stress in the environment” (PAI). There is little doubt that if [Ms Haig] were to be prevented from relocating, her tension and anxiety would increase to clinically significant levels, having an adverse impact upon [Ms Haig’s] psychological well-being, the well-being of her unborn baby, and, by proxy, on the child’s well-being and ongoing development.”

10. Ms N carried out her assessment by interviewing the mother and carrying out psychometric tests over two days. Ms N sets out the history that she took from the mother. She also administered a Personality Assessment Inventory (PAI) which is a self-report instrument which generates hypotheses about the individual’s functioning and any possible DSM-VI diagnosis. Ms N says that having studied the results of that testing and having taken into account Ms N’s clinical observation of the mother during interviews over two days, she had reached a certain opinion about the mother’s current psychological status.

11. In the context of an interim hearing, Ms N is not going to be tested and the weight placed on her opinion is accordingly diminished, particularly in circumstances where genuine questions might be asked of Ms N about the way she has formed her opinion. I am however satisfied that she has sufficiently set out on the face of her report the methods by which she has reached her opinion.

12. Ms N goes on to say that in her view, it would be a travesty of justice if the father was successful in convincing the court that his attempt to prevent the mother and the child from joining Mr H in D Town would be best for the child’s ongoing welfare. Although an expert is entitled to express an opinion about the ultimate issue, I put no weight on that opinion expressed by Ms N.

WHETHER THE ORDERS OF 2 JULY 2008 ARE A NULLITY

1. As set out above, final orders were made in this matter by a Federal Magistrate on 2 July 2008 in the terms of interim orders made on 15 October 2007. The father claims that these final orders are a nullity.

2. A transcript of what happened on 2 July 2008 is in evidence. The father’s lawyer appeared before the court. The mother did not. The father’s lawyer told the court:

   There are current orders in place that really set out the child’s arrangements well, even past 2011….it sets out in quite detail what’s to happen with the child whilst they are in Australia. They do – this couple do a lot of travelling around the world. They’ve allowed each other to be able to take the child to [Country E], to [Country G], so it’s really quite detailed and it goes through even to then after 2011. She is looking at relocating back to [Country E]. In the meantime they’re having shared care.

3. The father’s lawyer then told the court why the mother was not present. The father’s lawyer related a conversation which she had had with the mother the previous night (1 July 2008). The mother said to the father’s lawyer, “Do I need to appear in court tomorrow?” The father’s lawyer replied, “Well, yes, you do, it’s down at 9.30”. The mother said, “I am not wanting to proceed any further. The orders are in place. They are working. We in fact have exchanged now a calendar”.  The father’s lawyer goes on to say, “My client rang me at 10.30 last night and said to me, “We’ve had discussions.  She is not wanting to continue”. I said, “Well, if that’s the case she needs to file a notice of discontinuance. We prepared it, he came in, he picked it up, took it to her and she signed it and he’s brought it back and given it to me”.

4. As already indicated, on 2 July 2008 the Federal Magistrate made the following order:

   A Notice of Discontinuance having been filed the Application filed 12 October 2007 is dismissed and the interim orders made on 15 October 2007 will be final orders.

5. The father sought to argue that those final orders were a nullity because at no stage did the father seek to file any response seeking parenting orders and argues that once the Federal Magistrates Court accepted the mother’s Notice of Discontinuance, there were no proceedings in which the Federal Magistrates Court could make the order. 

6. I find that:

   49.1.The Federal Magistrate was entitled to conclude from what the father’s lawyer said on 2 July 2008 that the father was by implication making an oral application, for the Federal Magistrate to finalise the proceedings in the same terms as the extensive interim orders that had been made in 2007 and he proceeded to do so without any murmur from the father’s lawyer who was present throughout;

   49.2.The mother signed the notice of discontinuance on the representation by the father’s lawyer that that was how to end the proceedings and ratify the orders which were in place and were working;

   49.3.On 2 July 2008 the husband’s lawyer represented to the court on behalf of the husband that it was the parties’ clear intention that in August 2011 the mother be able to relocate with the child to Country E; and

   49.4.Sealed copies of orders were issued by the court on 2 July 2008 and the father has not sought to appeal those orders or to in any other way have those orders discharged on the basis they were a nullity.

1. Given that there are final orders in place, there is a threshold issue (arising from Rice v Asplund (1979) FLC 90-725 and the cases that follow it) both on an interim and final basis.

Changed circumstances

1. On an interim basis, the fundamental change in circumstance is that the mother now no longer wishes to move to Country E but rather to D Town and seeks an order on an interim basis to allow her to do so, together with an order suspending order 23 made 2 July 2008. That is sufficient on an interim basis for me to be able to reconsider the current arrangements.

2. Whether it is enough, at the final hearing, to create what would be a significant change to the actual intention and effect of the final orders, will be a matter for further argument at the final hearing. I do not propose at the final hearing to deal with any Rice v Asplund question as a discrete preliminary matter but will deal with the issue as part of an overall consideration of all of the evidence at the final hearing.

Timing of the final hearing

1. It was generally accepted during submissions that a final hearing in this matter could not take place until June 2012 (a combination of the scheduled sittings of the Family Court in C Town and the fact that the mother would not be available for any sittings in March due to the expected birth of her child).

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII FLA are to ensure that the best interests of children are 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 that 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 those objects (unless contrary to a child’s best interests) are:

   (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).

3. Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

5. Senior counsel for the mother commenced by referring to paragraphs 13 and 15 in MRR & GR [2010] HCA 4 and urged the court in accordance with what the High Court said in those paragraphs to look at the reality of the situation and make a practical assessment as to what should happen in the child’s best interests.

6. Goode & Goode (2006) FLC 93-286 at paragraph 82 sets out a check list of matters to be considered in the context of making interim decisions.

THE COMPETING PROPOSALS

1. Until the final hearing the mother wants to be able to relocate with the child to D Town and give birth to the child she is expecting in D Town. The father, until the final hearing, wishes the child to remain in C Town (and in those circumstances the mother has indicated she would remain in C Town).

ISSUES RAISED IN SUBMISSIONS

The mother’s current situation

1. Senior counsel for the mother submits and, on the evidence before me I accept, that the mother has no significant support network in C Town.

2. The mother gives evidence that she is pregnant; that she does not have family in Australia to give her support; that she has few friends in C Town and they are busy with their own commitments; she accepts that her partner does not want to come to C Town and cannot practically sell his business and relocate to C Town. She says she needs his emotional support, particularly as she approaches the time when their child will be born. Having an additional adult in her household will greatly assist her when she brings the baby home.  The mother also points to the lack of financial certainty that she has in terms of the father’s support. There is evidence that there has been an ongoing problem in terms of the father paying his share of rates and body corporate fees. Senior counsel for the mother described the non payment of rates and body corporate fees by the father which were outstanding for a long period of time (and are now paid) as a ‘running sore’. The mother will experience a significant drop in her current income once she ceases work (there is a significant differential between her full time pay and the pay she will receive by way of maternity allowances). At the moment she is earning about $1,000 gross per week. Her income will drop to about $400 when she stops work to have the baby. 

3. In relation to what time each parent has spent with the child, senior counsel for the wife points out in the context of this interim hearing that the father’s affidavit in response does not challenge any aspect of the mother’s evidence as set out in paragraphs 79 to 91 of her affidavit of 3 October 2011. In paragraph 85 the mother refers to her very limited support system in C Town.  Her best friend who has filed an affidavit moved to Sydney over a year ago and other friends are busy with their own lives and commitments. The mother feels “trapped and lonely in C Town”. The mother asserts that her own family is not able to come over to Australia to be with her at the time of the birth of the baby (that is an untested proposition); the mother’s father is in business; the mother asserts that it is currently in financial difficulty; the maternal grandmother is a commercial lawyer. The mother asserts her mother cannot afford to fly out to C Town.

4. Senior counsel submitted that on the face of the evidence I would find that the mother is miserable, anxious and stressed in C Town, and I accept that is so.

Time each party has spent with the child

1. In paragraph 73 of her affidavit filed 3 October 2011, the mother says:

   We reached agreement on care arrangements in May 2011, based on 50/50 care for the balance of 2011. Each parent was to spend four days with the child one week and three days the next week. This calendar operated until 26 September 2011. The respondent cancelled 18 days available to him during this period. The respondent spent a total of 45 days (or 34 [per cent]) of the time with the child during this period.

2. In his affidavit in reply filed 14 November 2011, the father does not deny what the mother says, contenting himself with saying, “[Ms Haig] and I adjusted the contact calendar, in accordance with our commitments”. The child has spent his infancy primarily with his mother, even though on paper the court orders would indicate a shared care arrangement. The mother however says that the father has not taken up the opportunity provided to him that the child spends 50 percent of his time with his father. At paragraph 96 of the mother’s affidavit filed 3 October 2011, the mother provides a history of the times the father has gone away since September 2010. The father does not dispute the accuracy of the information provided by the mother and agrees that the times that he has been away have been for both business and holidays. The father asserts that he has attempted to coordinate his time away so that it was during periods that he would not have had the child in his care. The father asserts that in the future he anticipates that he would be able to structure his overseas business activities in partnership with his brother Mr Q so that he is away less.

3. The father concedes he was away for many nights at a time. Some of the periods the father has been away have been significant (20, 17 and 12 nights).  It is unclear to me how these periods the father was away would not have impacted upon his ability to facilitate a shared care arrangement. In paragraphs 60 and 63, the mother says that the reality was that the child lived with her and spent time with the father usually two week days one week and three week days the next week, aside from the odd Sunday. The father in his affidavit in response filed 14 November 2011, does not put the mother’s assertion in issue and again simply comments that the mother and he “both adjusted the contact calendar in accordance with our commitments”. Again, I conclude from that evidence that the mother’s assertion that she, up until this point, has effectively had the primary care of the child, to be conceded.

4. The mother in her affidavit refers to the Child Care Centre “sign in/sign out” records as demonstrating that the father is habitually late picking the child up from that day care facility.

5. The parties were asked to prepare an agreed statement in relation to what those records say. As earlier indicated, what the parties prepared was a document which demonstrated that they disagreed on exactly how many days each of the parents signed the child in and signed him out, but as a general statement, they shared that parenting responsibility about equally.

6. At paragraph 102 of her affidavit, the mother asserted that in a 64 day period when the child was attending the Community Day Care Centre, the father only signed the child in on 14 occasions and signed him out on 11 occasions. The complete set of records from the Community Day Care Centre have been analysed. As earlier indicated, the father accepts that the mother signed the child in 69 per cent of the time and signed him out 72 per cent of the time.

7. I conclude that although the child has spent significant time with his father, the mother has been the child’s primary carer, when the first five years of the child’s life is looked at overall.

8. The extent to which that has become more even in recent times will be the subject of further investigation at the final hearing.

Mother’s psychological state

1. Senior counsel for the mother referred to parts of the mother’s case notes as kept by her general practitioner (exhibit 1). On 3 June 2010 Dr T records a history of “recent times has been stressed plus freq tears, anxiety, building poor sleep patterns” and the doctor’s diagnosis of the mother on 3 June 2010 was that she was “stressed, anxiety obvious stressors”.  Dr T records that the mother was suffering from anxiety on 17 June 2010.

2. Senior counsel for the mother referred to the notes from a psychologist whom the mother sought some assistance, Ms O (exhibit 2), in February 2011. Ms O recorded the presenting issues as the mother being really anxious and wanting to be less reactive to the father. A note in October 2011 records “client has been taking one day at a time but is still worried…..stressing still and that’s not good for her or the baby”.

3. Senior counsel for the mother in this context also relies on the opinion of Ms N as contained in the addendum on page 8.

4. Senior counsel for the mother submitted that “as night follows day” it is axiomatic that a parent who has primary responsibility for the care of a child is less able to carry out that role if that parent is feeling anxiety, stress and uncertainty about what her future holds. I accept that the mother’s care for the child would improve if she felt love, support and security in a home with Mr H.

5. I accept that it could not but enhance the life experience for the child if his mother did not feel defeated and lost and that allowing the mother to establish a home with Mr H would create a more likely environment where the child can grow and thrive.

Submissions by senior counsel for the father

1. Senior counsel for the father said that it seemed that the mother’s position was based on three propositions:

   78.1.That she is pregnant;

   78.2.That she has a desire to cohabit with the father of her unborn child, Mr H; and

   78.3.Mr H’s reluctance to come to C Town.

The mother’s pregnancy

1. Senior counsel for the father pointed to inconsistencies in the evidence in relation to whether or not the mother had intentionally sought to fall pregnant. At paragraph 29 his affidavit, Mr H says:

   29.  We both wanted children together and did plan to become pregnant after [Ms Haig] moved to [D Town]. Our child is arriving sooner than planned. I am delighted at becoming a father, although worried about the situation if [Ms Haig] cannot live in [D Town].

2. The notes from P Medical Centre (exhibit 1) disclose that the mother saw her general practitioner on 13 April 2011 and had an IUD removed. The history records “trying for a baby”. Based on that independent record, I conclude that at least the mother had formed the intention by 13 April 2011 to attempt to have a child with Mr H. The mother fell pregnant in June 2011.

3. Senior counsel for the mother submits that it is irrelevant as to whether or not the conception was intended or by accident. He submits that the fact that the mother is pregnant with her second child has long term consequences for the remainder of the child’s life. The mother is pregnant to a man with whom she is in a stable relationship and with whom she wishes to live in the long term. I accept those submissions

Actions by the mother said to be inconsistent with a wish to move

1. It was submitted by senior counsel for the father that the actions by the mother in late 2010 and through 2011 had created an expectation in the father’s mind that her ability to relocate would not be pressed.

2. Senior counsel for the father pointed to the fact that the mother first raised her wish to move to D Town with the father in October 2010 and confirmed that she wanted to go in February 2011. He said notwithstanding this, in July the only application that the mother made was one for alteration of property. As senior counsel for the mother rightly points out, that application was filed as a matter of necessity given the provisions of s 44(3) FLA and the fact that the parties had been divorced almost one year previously.

3. Senior counsel for the father pointed to the fact that the mother negotiated the 2011 calendar which, at least on its face, agreed to a shared care arrangement, initially alternating between three nights and four nights and then subsequently week about. There was a further agreement entered into to reserve a place for the child at a private school in C Town. Paragraph 17 of the father’s affidavit of 29 July 2011 contains an email from the mother which reads, “Prep in 2012 is ok”. The email is dated 19 April 2011. As indicated, that email was sent in circumstances where the mother was not yet pregnant. Senior counsel for the mother points out that no great weight can be placed on that given that the mother had also covered the option of reserving a place for the child at a local Catholic school in D Town (see email which is on page 14 of the father’s affidavit filed 29 July 2011). 

4. Page 31 of the father’s affidavit filed 29 July 2011 gives an example of the contact calendar the parties has worked out together. That document however is not of great relevance given the uncontested evidence that the father did not avail himself of the opportunities provided in that calendar. Senior counsel for the father refers to an oral agreement between the parties for a week on, week off arrangement which was reached in a conversation between the parties in September 2011 as deposed to in paragraph 75 of the mother’s affidavit filed 3 October 2011 and also referred to at page 5, being the chronology set out by the mother in her affidavit. The mother says at paragraph 75:

   In September 2011, the respondent contacted me to ask if we could change the child’s living arrangements to ‘week about’ from Monday to Monday. I asked that we agree to the child spending nine days with me and five days with the respondent as this was a better representation of the reality of the care arrangements to date. The respondent refused. Faced with the respondent’s position and being of the firm belief that the respondent could never follow through with caring for the child week about on an ongoing basis, I agreed. The new arrangements were scheduled to start on 26 September 2011. I did advise the respondent I would be away from [C Town] from 28 September 2011. On 27 September 2011 the respondent telephoned me and asked if I wanted to spend a few days with the child that week…….

5. I accept that the mother has been saying consistently, particularly through the last part of 2010 and through 2011, that she wanted to move to D Town and the father has been turning a deaf ear to what she has been saying.

Mother’s desire to live with Mr H

1. Senior counsel for the father points out that if one looks at the mother’s chronology on page 4, the mother in three periods (September 2010, December 2010 and Easter 2011) has spent 27 days with the child in D Town. Senior counsel for the father points out that the child has no established routine in D Town; he has no friends in D Town with whom he might be starting school (compared to what one might infer might be the position in C Town, although there is no evidence to say that any of his preschool or neighbourhood friends are in fact going to the same school as that which the child might attend in C Town). Senior counsel for the father made the point that the child would be arriving cold in D Town after only being back in Australia two or three weeks, having been overseas for consecutive periods with his father and mother during the majority of the Christmas school holidays.

2. The child has yet to experience a normal domestic relationship in a household consisting of the mother and Mr H. Senior counsel for the father makes the submission that D Town is a city with which the mother has no previous association; she has no friends in D Town and that if Mr H is involved in his business, he will be on his evidence, away at his business between 9am and 5pm and the mother will spend the bulk of the day without any friendly contact.

The position of the mother’s new partner

1. Mr H’s documents disclose that he was presently rooted in D Town and owns a home there.

2. Senior counsel for the mother referred to parts of Mr H’s affidavit. His evidence was that his father established business in D Town in 1977 and that that business has operated successfully for 34 years, with a well established client base in the D Town region. Mr H has worked in the family business for the last 22 years, starting as an apprentice.  After his apprenticeship he worked in the business with his father in a managing role. His father passed away six years ago. Mr H says that his mother relies upon rent that the business pays her for her support. The business pays $6,000 per month (which is a higher amount than the market rent which Mr H says was $4,000 a month). Mr H considers he has a moral obligation to continue to support his mother.

3. There is no indication as to what Mr H;s mother’s assets or other income are and whether or not an income from the rental of the business at $4,000 per month from an arm’s length owner of the business would in any way jeopardise her ability to live.

4. Mr H says the business currently has 13 employees, half of whom have been employed in the business over 20 years.

5. Mr H’s evidence is that his annual wage is $45,000 and he supplements this by way of a distribution from the family trust at an annual amount of $20,000.

6. Given the established nature of the business and its size; the expertise that Mr H has and the amount of time he spends in the business, his actual drawings from the business are puzzlingly small. No detailed financial statements of the business operations are in evidence nor has there been any testing of how the business operates under its current structure and who might benefit from the income it generates.

1. Senior counsel for the father referred to the notes of Ms O, the mother’s psychologist (Exhibit 2). In a consultation on 12 October 2011, Ms O recorded the mother telling her that “[Mr H’s] business doing well – he is the business so difficult to sell – he has 30 staff and if he sells transition includes two years where he has to oversee”. Senior counsel for the father made no point about the discrepancy about the number of staff that Ms O has recorded the mother had reported to her and that sworn to by Mr H (13). That passage in Ms O’s notes however is relied upon by senior counsel for the father as support for the inference that the mother and Mr H have spoken about the possible sale of the business and that the business is “doing well” which would indicate that one might need to treat with some caution Mr H’s assertion that having drawn wages of $45,000 from the business, the only other distribution that he was able to have from profits was $20,000.

2. Senior counsel for the mother submitted that it was not reasonably practicable to expect Mr H to move. There was no evidence that he could get the relevant licenses or approvals to operate as a panel beater in far North Queensland.  I was invited to take notice of the effect on the C Town economy of the global financial crisis.

3. Senior counsel for the father responded to senior counsel for the mother’s suggestion that C Town is in a depressed state and moving here and attempting to establish a business here would be risky after the global financial crisis. Senior counsel for the father made the point that motor vehicles still collide even after the global financial crisis and insurance companies still exist to make arrangements to have motor vehicles repaired. I am unable to say whether, in the current economic climate, C Town has the capacity to absorb another panel beating business or whether or not there is an existing business which is for sale. 

4. In paragraph 8 of his affidavit, Mr H says he is working when he is back in D Town and away from the mother for six to seven days a week, eleven to twelve hours a day. In running his business, he says “my role involves dealing with customers, insurance companies quoting, ordering parts and day to day operation of the business”. At paragraph 38 Mr H says he has a foreman who supervises his business while he is away in C Town and who will give the job sheets to the other employees. As I understand Mr H’s evidence, he is asserting that he is the only person in the business who can quote on jobs and deal with insurance companies to get approval for quotes.  In paragraph 38 Mr H also says that his usual working hours are five and a half days per week from 7am to 5pm and he would hope to return to those hours.

5. Senior counsel for the mother submitted that on the face of the material that I have, it could not be reasonably found that Mr H could move to C Town without a significant financial risk to him. It is submitted that there is nothing in his material which would indicate that the business is sufficiently profitable for it to be able to afford to employ a manager with Mr H’s skills to run the business in his absence (noting that Mr H’s effective income from the business (at least on the face of his affidavit) is $65,000 per annum), but in circumstances where he appears to be paying his mother $2,000 per month above market rent for the premises out of which the business operates. 

6. Senior counsel for the father points to the fact that Mr H’s relationship with the mother has been a long distance one for some time. Senior counsel for the father challenges Mr H’s assertion in paragraph 37 of his affidavit that he cannot afford to take off a month or two to live in C Town after the mother has had their baby to support the mother and help her with the baby. Senior counsel for the father makes the valid point that Mr H has provided no specificity as to what impedes that happening. I have a lack of financial detail relating to Mr H’s business. It is clear that Mr H has, for a period of time, been able to come to C Town and continue to oversee his business. Senior counsel for the mother did concede that Mr H would be present at the birth of his child if the mother remained in C Town.

7. Absent clear financial particulars and based upon what the mother seems to have said to her doctor, I conclude that Mr H is understating his ability in the short term to provide the mother with support in C Town. 

Ability of the father to move

1. The father has not in his affidavit, provided any evidence about his ability or lack of ability to relocate on a temporary or permanent basis to D Town. Senior counsel for the father submitted from the bar table that his instructions were that the father considered that it would not be possible to run his business from D Town. I accept C Town is a corporate front for the father’s business, but his evidence seems to indicate that the future growth and expansion of the business is not in Australia but overseas.

Ability of the parties to communicate (s 65DAA(5) FLA)

1. The parties communicate electronically. The father travels internationally. I have no doubt that he conducts overseas business by electronic means and that both parties have the ability to keep in touch via Skype and other methods.

Christmas travel

1. The parties have agreed upon orders for overseas Christmas travel.

STATUTORY CONSIDERATIONS

1. Both parties agree that the child would benefit from having a meaningful relationship with both of his parents.

2. The mother has raised issues as to the father’s neglect of the child’s health and the emotional harm to him of engaging the child in the litigation. The father seemed to have been involved in attention to the child’s medical needs. Exhibit 7 contains a number of entries which were highlighted by senior counsel for the father where the father had attended the child’s GP with the child.

3. The mother also asserts that the father has, in the past, been physically and verbally abusive towards her. Senior counsel for the mother however did not place any weight upon that aspect of the case during submissions. The current final orders contain injunctive orders against both parents in relation to the use of alcohol and other drugs. It may be that those are issues that are further explored at the final hearing.

4. I have no evidence as to any views that the child expresses but it is unlikely that they would be accorded any significant weight at the final hearing given the child’s age.

5. It is uncontroversial that the child has a good relationship with both his parents.

6. The mother puts significant weight on her willingness and ability to have facilitated and encouraged the relationship between the child and his father by coming back to Australia from Country E with the child in August 2007 in good faith to honour the agreement that she had reached with the respondent.

7. The mother suggests that the child is used to his father being away frequently and therefore would be able to handle being away from his father in D Town in the short term. The mother is of the view that the child would not be sad if she moved to D Town in the meantime and would be able to spend holiday time with his father.

8. Final orders were made in this matter on 2 July 2008. Since the final parenting orders were made in 2008, the mother has been facilitative of the relationship between the father and child and a meaningful relationship has flourished between father and child. Senior counsel for the mother submits that the mother’s compliance with the 2008 orders has come at an emotional cost to her and refers to paragraphs 142 to 144 of the mother’s affidavit filed 3 October 2011. The mother gives evidence that she never wanted to live permanently in C Town and that it was her understanding of the 2008 orders that once she allowed the development of the relationship between the child and his father, she would be allowed to leave C Town. Senior counsel for the mother suggests that the father should not be able to turn his back on an arrangement that he had agreed to in 2007 in circumstances where both have acted upon that arrangement and the mother has remained in C Town, notwithstanding her loneliness in C Town; her lack of support; and her sense of financial insecurity. Senior counsel submits that pursuant to the 2008 orders, she has made those sacrifices in order to foster the relationship between son and father. I accept on the undisputed evidence which I have, that the mother has made those sacrifices.  This is a matter I take into account in the context of these interim proceedings but it is difficult to estimate what weight to place upon it in the context of untested evidence.

9. Whilst Ms N expresses the opinion that preventing the mother from relocating would mean that her tension and anxiety would increase to clinically significant levels, it is unclear as to whether or not that opinion relates to the mother not being able to relocate immediately or whether or not it relates to the mother not being able to relocate on a final basis. Because of that difficulty, I cannot place great weight, in the context of the interim hearing, upon the opinions expressed by Ms N in the addendum to her report.

10. It is the mother’s  case that she has primarily met the child’s day to day needs and it is her case that her capacity to do so will be affected unless she is able to move. For the purposes of this interim hearing, I accept that the mother is suffering psychologically by her feeling of being “trapped and lonely in [C Town]”. As I have said however, the expert evidence in relation to the effect that that has on her psychological health in the short term is unclear to me.  In the context of the final hearing, that expert evidence will be the subject to testing and the court at that time will be in a better position to assess the weight to be placed upon that evidence.

11. The mother has proposed that she pay the costs of the child’s return airfares from D Town to C Town for NSW school holiday periods in order to facilitate time with his father. The air travel is about three and a half hours each way.

12. Senior counsel for the father makes the point that allowing the mother to move to D Town may create a situation where the child is moved from an established environment to a new environment and then six months later, if the father is successful at the final hearing, again dislocating the child to remove him from an established situation in D Town back to C Town.

13. Senior counsel for the father urged the court to look at what might happen in the next six months through the child’s eyes. If an order was allowed allowing the mother to relocate to D Town, there would be a period where the mother would be involved in packing up what she has in C Town; severing her ties in C Town and preparing to move. There then would be an extensive holiday period with about two weeks to settle in before the first day of school. Six weeks later it would be expected that the mother would be hospitalised in the course of having her second child. On the mother’s proposal, that hospitalisation would take place in D Town. I have no evidence one way or the other as to the mother’s current obstetric care but I infer that she is seeing an obstetrician in C Town and would make the necessary arrangements to find an obstetrician in D Town.

14. During the period that the mother was hospitalised in D Town, the child would be cared for by Mr H and his mother, neither of whom the child knows as well as his father. If it was in C Town he would be cared for during that period by his father. 

15. Senior counsel for the father has already indicated the likelihood of Mr H returning to work between the hours of 7am and 5pm and the mother being home alone with the child and a newborn baby.

16. In C Town, the child would start school. I am asked to infer this will be alongside some friends that he already knows in the C Town area. Whilst I have no evidence one way or the other about that, that is not an unfair inference to draw.

17. The child will obviously also be going through a period of time of adjusting to his new sibling and it is suggested that during a period of adjustment, ready access to both his parents will be of some advantage to the child.

Parental responsibility

1. Both parties in the final orders agree that an order should be made for equal shared parental responsibility for the child and accordingly I am required to consider the provisions of s 65DAA FLA and in particular, consider, on an interim basis, making an order that the child spend equal time with both parents unless it is contrary to the child’s best interests or not reasonably practicable to do so.

2. In making a determination under s 65DAA(1) FLA, I must have regard to those matters set out in s 65DAA(5) FLA. An equal time arrangement is reasonably practicable on the father’s proposal but not on the mother’s. The parties have a capacity to implement such an arrangement and their level of communication is sufficient to enable it to happen. The mother argues that there will be an impact upon the child if she is forced to remain in C Town during the period of time when she gives birth to her second child.

CONCLUSION

1. The reality of the situation on an interim basis is:

   124.1.The father’s proposal continues an established arrangement in the short term;

   124.2.The mother’s evidence as to her loneliness in C Town and the effect on her psychological wellbeing is yet to be properly tested;

   124.3.It is conceded that Mr H will be present for the birth if the mother does remain in C Town and I am not convinced that his financial position is such that in the short term he could not make himself more extensively available to the mother in C Town in the interim period that the parties will be in C Town (having regard to the overseas holidays the child will be involved in with both his parents over the Christmas period); and

   124.4.The final hearing of the matter will take place within a relatively short period of time.

2. I acknowledge that I have inadequate evidence from the father as to his ability to relocate to D Town.

3. On an interim basis, I find that it is in the child’s best interests to stay in the existing arrangements in C Town until the final hearing takes place and I will make orders accordingly.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 December 2011.

Associate:

Date:  14.12.2011