HANWOOD & HALLIDAY

[2017] FCCA 996

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANWOOD & HALLIDAY [2017] FCCA 996

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking order that mother relocate back to former living region – proposed order not made – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks & Banks [2015] FamCAFC 36

Vontek & Vontek [2017] FamCAFC 28

Applicant: MR HANWOOD

Respondent: MS HALLIDAY

File Number: PAC 1659 of 2016

Judgment of: Judge Newbrun

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Parramatta

Delivered on: 23 May 2017

REPRESENTATION

Solicitors for the Applicant: Family Law Group Pty Ltd

Solicitors for the Respondent: MDV Family Lawyers

ORDERS PENDING FURTHER ORDER

1. The father’s Application in a Case filed 23 September 2016 is dismissed. The Court declines to make the father’s proposed orders set out in his Case Outline filed 24 January 2017.

2. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 18 April 2018.

   The Family Report to deal with the following matters:

   (a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.

   (b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);

   (c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:

   (i)either of the parents: or

   (ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.

   The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.

3. Proceedings are adjourned for mention following release of the Family Report on 18 May 2018 at 9.30am.

4. Pursuant to Section 68L of the Family Law Act 1975 the child X born (omitted) 2014 shall be independently represented and request that the Legal Aid Commission provide that representation.

5. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

6. Leave to parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

NOTATION:

1. The interim orders of the Court made 22 July 2016 shall remain in force pending further order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1659 of 2016

MR HANWOOD

Applicant

And

MS HALLIDAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the hearing of the father’s Application in a Case filed 23 September 2016 regarding the child X born (omitted) 2014 (“the child”).

2. In that Application, the father sought a parenting order that within 21 days the mother return the residence of the child to the (omitted) area.

3. It is helpful to give a short procedural history of these proceedings.

4. The parenting proceedings were commenced by the Applicant father by way of an Initiating Application filed 15 April 2016. The interim orders sought by the father included a proposed interim order that the mother be restrained by injunction from removing the child from (omitted) or from within 20km of (omitted).

5. The mother relocated to (omitted) with the child in June 2016 without consent from the father. The parties now live approximately 2.5-3hrs hours apart. The changeover venue is Hungry Jacks at (omitted), near (omitted).

6. The mother filed a Response on 26 August 2016 in which she sought, inter alia, an interim order that the child live with her and that the mother continue to live in (omitted).

7. The father filed an Application in a Case on 23 September 2016 seeking, inter alia, an order the mother return with the child to the (omitted) area. The father’s proposals set out in his Case Outline filed 24 January 2017 seek, inter alia, an order that the mother relocate the child’s residence to the (omitted) area; that the child live with the mother; and that the father spend 6 nights each fortnight with the child.

8. The mother in her Response filed 24 November 2016 (presumably a Response to the father’s Application in a Case) seeks orders that the interim orders of this Court of 22 July 2016 and 29 September 2016 continue. These orders provide that the child live with the mother and spends time with the father in each alternate week from 6PM on Wednesday until 6PM on Sunday, with changeovers to occur at (omitted) (sic (omitted)) Hungry Jacks. They also allow for telephone communication with the child whilst the child is in the other party’s care.

Material relied upon by parties

The Applicant Father

1. The Applicant Father relies on the following documents:

   a)Application in a Case filed 23 September 2016;

   b)Notice of Risk, filed 15 April 2016;

   c)Affidavit of Mr Hanwood, filed 15 April 2016;

   d)Affidavit of Mr Hanwood, filed 23 September 2016; 

   e)Affidavit of Mr Hanwood, filed 24 January 2017

   f)Affidavit of Ms D, filed 30 January 2017;

The Respondent Mother

1. The Respondent Mother relies on the following documents:

   a)Response filed 24 November 2016;

   b)Affidavit of Ms Halliday, filed 26 August 2016;

   c)Affidavit of Ms Halliday, filed 24 November 2016.

2. The exhibits in evidence were:

   a)Child Dispute Conference Memorandum dated 1 December 2016 (Exhibit A);

   b)Payslips of the mother from (employer omitted) from 16 June 2016 to date of this hearing (Exhibit B);

   c)Credit card statement provided by the mother in response to a Notice to Produce from the father (Exhibit C);

   d)(omitted) Finance Account statement for car insurance payments indicating the mother’s payment arrears (Exhibit D).

Agreed or undisputed relevant facts

1. The father was born in (omitted) 1985 and is aged 32 years. The mother was born in (omitted) 1992 and is aged 24 years.

2. The parties met in about (omitted) 2012. They started dating in about (omitted) 2012. At that time the mother lived in (omitted) with her parents working as a (occupation omitted) and as a (occupation omitted). Later, the mother moved to Sydney to live with the father.

3. The child X was born (omitted) 2014.

4. The father accepts that the mother has always been more directly involved with the child’s daytime routine compared to himself. He provided financially for the family through work in his own (omitted) business. He states that he is conscious of the young age of the child and her primary attachment to the mother. The father states that his bond with the child is equally as strong as the mother’s. When the father was not at work he contributed to caring for the child.

5. The parties commenced cohabitation in early 2013.

6. The parties finally separated in about September 2015. They remained living together separated under one roof.

7. The mother moved into a granny flat in (omitted) in about November 2015. The father commenced spending time with the child for 4 nights each fortnight.

8. The father is a (occupation omitted).

9. The mother is a (occupation omitted).

10. In about mid-June 2016 the mother unilaterally relocated with the child from (omitted) to (omitted). The mother did not notify the father prior to relocating with the child. The mother asserts that she feared the father would stop her. The maternal grandparents live in the (omitted) area. The mother told the family consultant on 29 November 2016 (the Child Dispute Conference) that when she informed the father of her relocation, the father “talked straight over me” and was upset and angry.

11. The father has a son, A, born (omitted) 2006 from a previous relationship. He enjoys a shared care arrangement with A’s mother.

12. The father told the family consultant that the parties argued during the relationship. He reported that he pushed the mother off him on one occasion and that, while in (country omitted), he pushed the mother and she tripped and fell.

13. The mother told the family consultant that she was physically abusive towards the father during the relationship, stating that she would get “heated as well”. She stated that the father would not “drop” arguments and that she would push or punch the father as a result.

14. Both parties admitted to the family consultant that they had used illicit drugs (cocaine, ecstasy) previously, and would be willing to undergo drug testing. The father stated that he last used about two months previously “and uses approximately once a year.” The mother stated that she last used illicit drugs prior to separation.

15. Both parties told the family consultant that communication between themselves is unsatisfactory and that they currently communicate via text message. They both prefer not to talk with each other.

16. The father stated to the family consultant that the child spends time with him alternate weeks from Wednesday to Sunday. He stated that, due to his work commitments, the child is cared for on Thursdays by the paternal grandparents and attends daycare in (omitted).

17. The mother stated to the family consultant that she is working fewer hours currently than she was when living in Sydney and can do additional shifts when the child is with the father or with the maternal grandparents. She stated that the child goes to crèche when she is working and attends preschool at (omitted) on Tuesdays.

18. Under the heading “Future directions”, the family consultant stated that according to the parties’ accounts, the child experiences care from at least 7 different carers (the parties, the paternal grandparents, the maternal grandparents, crèche, daycare in the (omitted) area and preschool in the (omitted) area) every fortnight. Such an arrangement, the family consultant stated, was unlikely to be in the child’s best interests in providing consistent and predictable care and could result in the child experiencing emotional and/or behavioural issues currently or in the future.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed 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).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   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:

   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.”

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In 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: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

8. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

12. As to relevant legal principle relating to relocation related applications, the Court refers to the recent decision of the Full Court of the Family Court of Australia in Vontek & Vontek [2017] FamCAFC 28.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The child has a meaningful relationship with each parent and would benefit from a continuance of those relationships.

2. The mother has been the child’s primary carer and the child’s primary attachment is to her. Nevertheless, the father when not working in employment, made a substantial contribution to the care of the child and the child has a close bond with him.

3. Prior to the mother’s relocation and after separation, the father spent time with the child for 4 nights each fortnight. The interim court orders of 22 July 2016 provided for the child to spend time with the father from 6PM on Wednesday until 6PM on Sunday each alternate week. The child also communicates with the father by FaceTime or telephone call every Wednesday and Sunday between 6PM and 6:30PM when the child is in the mother’s care.

4. Apart from the child being upset when leaving the father’s care at changeovers, and a relatively short period thereafter when the child is somewhat unsettled back in the mother’s care, there is no health professional evidence that the child’s emotional well-being has been significantly affected since spending four nights each fortnight with the father whilst living with her mother at the (omitted). In this context the Court notes that there is some factual dispute as to the regularity of the child’s upset at changeovers; the father states that it is a usual occurrence, with the mother asserting, in her Affidavit filed 24 November 2016, that she has observed the child to separate from the father without any tears or distress “on the last three fortnights.”

5. Should the child continue to live with the mother in (omitted), and spend time with the father each alternate week from 6PM on Wednesday until 6PM on Sunday, her meaningful relationship with the father should not be detrimentally affected.

6. Should the mother and child relocate to the (omitted) area, as a consequence of any interim court order, there is a significant risk that the mother’s emotional well-being will be adversely affected, in particular having to leave her supports in the (omitted) area, resulting in the child’s meaningful relationship with the parents being detrimentally affected. In this context, there is a significant risk that the mother’s parenting capacity of the child could be detrimentally affected.

7. Further, should the child be required to spend three nights each week with the father, should the mother and child relocate to the (omitted) area, pursuant to the father’s proposal, there is a significant risk that the child will be exposed to increased conflict between the parties resulting in the child’s meaningful relationship with the father, if not both parents, being detrimentally affected.

8. The court gives significant weight to this meaningful relationship consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The father told the family consultant that he had no concerns about the child’s safety when in the mother’s care and the mother complemented the father on his “dad role” post-separation.

2. Both parties told the family consultant that there had been heated arguments between them during the relationship, occasionally involving physical violence perpetrated by one towards the other.

1. The child was born on (omitted) 2014 and the mother left the matrimonial home with the child in about November 2015.

2. There is no allegation made by either party that the child was physically harmed during the relationship. However, it would appear that the child was exposed to hearing the parties’ heated arguments, including swearing.

3. By about September 2015, it would appear that the parties’ relationship was one of continuing high conflict. The parties told the family consultant that they usually communicate by text message and that verbal communications are avoided.

4. It is important that any interim parenting orders minimise the risk of significant conflict between the parties occurring in the presence of the child.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is too young to express a relevant view. The Court refers to the meaningful relationship consideration above.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The father states that the child has good relationships with his son, a 10 year old, from another relationship, and members of his paternal extended family.  The child would appear to have positive relationships with the maternal grandparents and the mother’s sister.

2. The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parents would appear to have taken such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The father pays weekly child support. The parties are in dispute as to the consistency of these payments.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. See the discussion below under the s60CC (3)(m) additional consideration.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. Both parents would appear to have such capacities.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The child is three years of age, and would appear to be developing in an age appropriate manner.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The parties are in dispute in relation to how the other parent discharged their parental responsibilities to the child during the relationship. Post-separation, each party would appear to be endeavouring to discharge their parental responsibilities towards the child in a responsible manner.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. Whilst these are interim proceedings, should the Court accede to the father’s interim parenting proposals, it has some concern that there will be a significant risk of increased conflict occurring between the parties in the presence of the child possibly resulting in further proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

1. By about September 2015, the mother was suffering depression, she was taking antidepressant medication and seeing a psychologist regularly.

2. The mother asserts in her affidavit filed 26 August 2016 that she is no longer taking antidepressant medication and she sleeps well each night.

3. The mother told the family consultant that she was diagnosed with depression while at high school and that her symptoms increased during her relationship with the father. She stated that she was prescribed medication which she found assisted, but had been unable to afford this prior to moving to (omitted). She reported that she currently experiences anxiety symptoms, which she did not have prior to the relationship with the father, and that she has been given a mental health care plan.

4. The mother asserts that her emotional well-being has been significantly improved since relocating with the child to the (omitted) area living on her parent’s property (the Court notes that the mother was living in (omitted) in late 2012 when the parties started dating. She worked there as a (occupation omitted) and (occupation omitted)). She states that she feels like a different person since she is living in the (omitted) area with the child.

5. Prior to the mother’s relocation to the (omitted) to be close with her family and friends, she had felt depressed and very lonely in the (omitted) area. She states that she did not have many friends in the (omitted) area.

6. In the (omitted) area, the mother asserts that the child and herself are surrounded by a loving support network, including the maternal grandparents, and the mother’s sister Ms S, with whom the child has a close relationship. The mother also has many high school friends there who have children of a similar age to the child and from whom the mother derives support. The mother asserts that her new life in the (omitted) area is now calm. She asserts that the child and herself are very happy now that they are living in the (omitted) area. The Court notes the father’s assertions that the child was content living in the (omitted) area.

7. The mother asserts that the child’s and her quality of life is far better living in the (omitted) area, by reason of, inter alia, their pleasant living circumstances on the maternal grandparent’s substantial property, and the area being, according to the mother, calm and relaxed. The mother states that she is now living in a calm and happy environment with a child in the (omitted) area. The mother states that she never felt safe living in the (omitted) area by reason of her belief that there was serious criminal activity there.

8. The mother states that the child loves the time she spends in the crèche at the (employer omitted) where the mother works.

9. The child attends a preschool one day per week at (omitted).

10. The mother states that she is able to spend the majority of the day with the child, taking part in the child’s activities.

11. The mother states that she now works at just one (employer omitted) rather than three (employers omitted) (which, according to the mother, occurred when she was living in the (omitted) area), which makes for a much smoother week with the child attending just one crèche which is situated at her work. She is working up to about nine hours a week as a (occupation omitted).

12. The parties are in dispute as to whether the mother’s financial circumstances would be improved if she was to relocate back to the (omitted) area and recommence employment there.

13. The mother asserts that it took her about 2-3 months to build up sustainable work at a number of (employers omitted). The mother states that she (employment omitted) when living in (omitted) “plus (omitted) work”.

14. The mother asserts that her financial circumstances were significantly strained living in the (omitted) area, post-separation, before moving to the (omitted) area. She states that her income did not cover her weekly living expenses living in the (omitted) area, and she was readily borrowing money from her parents to cope.

15. Just prior to relocating, the mother states that she was drowning in debt, every week borrowing money from her parents to keep her head above water. She was working three casual jobs.

16. The mother states that at the time of relocation, she had the following debts: personal loan $2,000; credit card $6,000; car repayments about $114 per week; weekly rent of $340.

17. The mother states that since relocating she has been able to clear the debts and she is able to meet her bills and credit card payments. (In this context, the mother refers to her car repayments being more reliable since relocation).

18. The mother states that she is paying a token rent to help her parents towards utilities which will assist financially to get back on her feet.

19. The mother asserts that she could not afford to return to (omitted). This is disputed by the father. He refers to material attached to his Affidavit indicating that since the mother’s move to the (omitted), she has participated in social activities such as ski trips, and is proposing further travel. He refers to credit card payments by the mother in this context. At this interim stage, it is not clear to the Court how the mother has funded these activities to date or how she would prospectively fund future social activities including travel, whilst noting the mother’s assertions that she is financially coping much better since moving to the (omitted) area. The Court is unable to make findings of fact on this disputed financial issue at this interim stage.

20. Whilst it would appear that the mother could well have a capacity to earn an increased weekly income from (omitted) work in the (omitted) area, compared to her similar work in the (omitted) area, the mother’s commercial rent in the (omitted) area will arguably be greater than her current rent, living on her parent’s property, and she will quite possibly have to work in more than one (employer omitted) in the (omitted) area rather than just the one (employer omitted) in the (omitted) area, resulting in the child being cared for in more than one crèche. (The mother asserts that she was working in three casual jobs in the (omitted) area before she relocated). In these circumstances, the mother may have to sacrifice spending daytime time with the child, compared to her current work/life balance arrangements in the (omitted) area. The mother’s previous work experience is (omitted) and (omitted) work. The mother asserts that a return to work in the (omitted) area may require her to seek work outside her usual areas of work. This may result in her spending less time with the child.

21. It is noted that the mother asserts that the maternal grandparents are minimally involved in the caring of the child (the mother states that it is on the odd occasion that she works a (employer omitted) that her parents are available to care for the child).

22. A proportion of the child’s present time spent with the father occurs during travel time between the changeover location and the (omitted) area (and vice versa). This would not occur if the child was living in the (omitted) area. (The father states that each fortnight his father drives so that he can sit in the back of the car with the child and spend time with her playing games and reading. Nevertheless, the Court appreciates that this is not the ideal manner for a parent to be spending time with a child.)

23. If the child was living in the (omitted) area, the father and his extended family may more readily be able to participate/observe the child in her extra-curricular activities including pre-school.

24. The Court notes that the child has been living with the mother and the (omitted) area since about mid-2016 to date. The child has settled into that new environment with the mother and is happy and well in her usual routines there. There is a not insignificant risk that if the mother is required to relocate the child’s residence to the (omitted) area on an interim basis, and then at trial the mother is permitted to relocate the child’s residence back to the (omitted) area, that the disruption to the child’s usual routines might have an adverse effect on her emotional well-being.

25. The court notes the comments of the family consultant under the heading “Future directions” regarding the child’s carers. The court refers to its above discussion above under s60CC of the Act; inter alia, the court notes the mother’s assertions as to the child’s contentedness in the (omitted) area, the minimal involvement of the maternal grandparents in providing care for the child, according to the mother, and the father’s assertions as to the child’s care when spending time with him and his extended family.

26. On balance, the Court is of the view at this interim stage, evaluating the above considerations under s60CC of the Act, and having regard to relevant legal principles relating to relocation cases, that it will be in the best interests of the child to remain living in the mother’s primary care in the (omitted) area.

Equal shared parental responsibility: section 61DA(1) and (2)

1. Neither party seeks a parental responsibility order.

2. The parties’ communication is by text messages. They avoid talking verbally to each other. The father states that the parties only communicate when arranging changeovers for the child. The parties have experienced a high conflict relationship, which would appear to linger to the present time.

3. The presumption of equal shared parental responsibility does not apply by reason of past family violence. In any event equal time would not be in the child’s best interests due to likely increased conflict. The existing interim orders approach substantial and significant time but for special occasions and events (e.g. Mother’s and Father’s Day), which have not be canvassed in these interim proceedings but may well be in the child’s best interests prospectively.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, and again noting relevant legal principles in relation to relocation cases, the court is of the view at this interim stage that it will be in the best interests of the child to make the following orders:

   1. The father’s Application in a Case filed 23 September 2016 is dismissed. The Court declines to make the father’s proposed orders set out in his Case Outline filed 24 January 2017.

   2. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 18 April 2018.

   The Family Report to deal with the following matters:

   a. Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.

   b. The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);

   c. The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:

   i. either of the parents: or

   ii. any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.

   d. The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.

   e. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.

   f. The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.

   The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.

   3. Proceedings are adjourned for mention following release of the Family Report on 18 May 2018 at 9.30am.

   4. Pursuant to Section 68L of the Family Law Act 1975 the child X born (omitted) 2014 shall be independently represented and request that the Legal Aid Commission provide that representation.

   5. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

   6. Leave to parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

   Notation:

   1. The interim orders of the Court made 22 July 2016 shall remain in force pending further order.

I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  29 May 2017