Harmon & Harmon
[2022] FedCFamC2F 330
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harmon & Harmon [2022] FedCFamC2F 330
File number(s): BRC 7421 of 2021 Judgment of: JUDGE DUNKLEY Date of judgment: 24 March 2022 Catchwords: FAMILY LAW - parenting – hearing of review application - who the children are to live with - should residence of children be returned to Brisbane - time with - orders young children Legislation: Family Law Act 1975 (Cth) Cases cited: Sampson & Hartnett (No 10) (2007) FLC 93‑350 Division: Division 2 Family Law Number of paragraphs: 183 Date of hearing: 17 February 2022 Place: Parramatta Counsel for the Applicant: Ms Breeze Solicitor for the Applicant: Family Lawyers & Mediators Australia Counsel for the Respondent: Ms Chesterton Solicitor for the Respondent: KF Solicitors ORDERS
BRC 7421 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARMON
Applicant
AND: MR HARMON
Respondent
ORDER MADE BY:
JUDGE DUNKLEY
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The parents shall have equal shared parental responsibility for the children X born in 2019 and Y born in 2021.
2.The children X and Y shall live with their mother.
3.By not later than 4pm on 26 April 2022 the mother shall make her and the children, X and Y, place of residence in Brisbane and/or its surrounding suburbs.
4.The father shall do all things to cause, if the mother elects in writing, for a residential tenancy agreement to be provided to the mother for a 2 bedroom apartment at B Street, Suburb C, Queensland for a term of 6 months at a rental of $400 per week.
5.The parties shall cause to be released to the mother, within 21 days of the date hereof, the sum of $15,000 from sale settlement proceeds, with that sum to be characterised at final hearing.
6.Upon the mother living in Brisbane, the children X and Y shall spend time with their father:
(a)Each Wednesday from 4pm to 6.30pm.
(b)Each Sunday from 8am to 4pm.
(c)At such other times as the parents agree.
7.The mother shall keep the father advised as to:
(a)The dates and times of Y’s medical appointments.
(b)The address at which the children live.
8.Unless the parents otherwise agree, the father shall collect the children at the beginning of each period from the mother’s home and return the children at the end of each period to the mother’s home.
9.The father shall not consume alcohol whilst spending time with the children nor in the 12 hour period before spending time with the children.
10.This case is listed for further directions before Judicial Registrar Webb in Brisbane at 10am on 28 March 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harmon & Harmon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Mr Harmon (the father) and Ms Harmon (the mother) are the parents of X, who was born in 2019, and Y, who was born in 2021.
BACKGROUND
Mr Harmon and Ms Harmon are both educators.
Mr Harmon was born in 1988.
Ms Harmon was born in 1990.
They first started to live together in Sydney, and later moved to Brisbane in 2013 where they remained living until 13 March 2021.
They married in 2015 and separated on 20 October 2020.
X’s birth was a traumatic experience.
At separation, X was aged 14 months, Y was in utero the mother being about 12 weeks into the pregnancy.
The father and mother initially negotiated arrangements for X to spend time with his father. The mother was often present during those periods.
After separation X remained living with his mother.
In 2021 the mother with X flew to Sydney to visit with the maternal grandmother. The mother had a flight booked to return to Brisbane In 2021.
In 2021 the mother was admitted to Region D Hospital with pregnancy complications, she was about 32 weeks into her pregnancy.
In 2021, Dr E, an O&G Staff Specialist at Region D Hospital, wrote a letter stating:
Ms Harmon is currently pregnant with estimated due date in 2021. As she has a high risk pregnancy we recommend that she does not travel during her pregnancy.
The mother thereafter remained in Sydney.
Border closures initiated by the Queensland Government then prevented her easy return to Queensland after Y’s birth.
To do so she would have required a travel exemption, and if granted, she would then have had to quarantine in a “medi‑hotel” for 14 days with 2 young children.
The Queensland Government in early January 2022 re‑opened the border with NSW and it has remained open. Travel between the two states has returned to pre‑pandemic conditions, ie. no entry permits nor quarantine are required.
The father did travel to Sydney so as to spend time with X on 9, 10 and 11 April 2021, during a period when the border was open. He sought to spend time with X on each day he was in Sydney. The mother permitted the father to spend limited time with X, only for 1 hour on 11 April 2021, despite his attempts to spend time with X on 9 and 10 April.
The father returned to Sydney around the time of Y’s birth but could not locate the hospital as the mother used an assumed name on being admitted.
The father filed an Initiating Application on 7 June 2021.
On 7 October 2021 a Senior Judicial Registrar upon an interim hearing ordered:
THE COURT ORDERS UNTIL FURTHER ORDER:
Relocation
1.That on or before 28 October 2021 the Mother shall relocate the residence of the children X born in 2019 and Y born in 2021 (“the children”) to the Greater Brisbane Area.
Live with
2. That the children live with the Mother in the Greater Brisbane Area.
Spend time with
3.That the child X spend time with the Father as agreed between the parties and failing agreement as follows:
a.Every Tuesday and Thursday from 4.00pm to 6.30pm
b.For a period of four weeks, every Saturday from 8.00am until 4.00pm
c.Following the conclusion of the four week period referred to in Order 3(b), from 8.00am Saturday to 8.00am Sunday each week.
d.In odd years from 5.00pm Christmas Eve until 2pm Christmas Day; and
e.In even years from 2.00pm Christmas Day until 5.00pm Boxing Day
4.That the child Y spend time with the Father as agreed between the parties and failing agreement as follows:
a. Every Tuesday and Thursday from 4.00pm to 4.30pm; and
b. Every Saturday from 8.00am to 8.30am
c. In odd years from 11.00am until 2.00pm Christmas Day and
d. In even years from 2.00pm until 5.00pm Christmas Day.
Injunction
5.That the Father is restrained from consuming alcohol to excess while the children are in his care.
Conduct of the parents
6.That each parent keeps the other informed of their address, mobile and telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
Emergency & medical communications
7.That if a child is ever injured or requires hospitalisation, the parent whose care the child is in, after stabilising the child, shall immediately contact the other parent via telephone and notify them of the child’s condition and the other parent be at liberty to attend the hospital to be with the child.
8.That should the non-caring parent not answer the call, the parent who is caring for the child will send a text message notifying the other parent about the child’s condition.
9.That once the condition of the child is known, the parent who has care of the child will send an update to the other parent via text message.
10.That all other emergency communication be conducted via text message.
11.That in the event that a child is taken to the doctors, the parent who is caring for the child will notify the other parent within twenty four (24) hours of the name and contact details of the treating doctor, reason for the visit and provide a detailed letter from the doctor to report to the other parent detailing the outcome or diagnosis.
12.That the Mother and Father shall inform each other of any professional or other qualified person that they consult in relation to the children and:
a.Advise the other parent of the time of any appointment in order that the other parent may attend if they so wish.
b.Authorise such professional or qualified person to release information to the other parent.
On 28 October 2021 the mother filed a Review of the above decision.
On 3 November 2021, amended on 9 November 2021, the Senior Judicial Registrar consequent upon the hearing of a stay application filed by the mother ordered:
THE COURT ORDERS UNTIL FURTHER ORDER:
Stay of orders
1.That the following Orders 1, 2, 3 and 4 of the Orders of 7 October 2021 are stayed until determination of the Application for Review filed 28 October 2021.
Live with
2.That until the determination of the Application for Review filed 28 October 2021 the children X born in 2019 and Y born in 2021 live with the Mother.
Spend time with
3. That the child X spend time with the Father:
a. In the period from 4 December to 17 December 2021 as follows:
i.From 8.00am to 10.30am on the first (1st) and second (2nd) days;
ii.From 8.00am to 4.00pm each day on the third (3rd) to seventh (7th) days inclusive; and
iii.From 8.00am to 4.00pm each day on the tenth (10th) to fourteenth (14th) days inclusive.
b. In the period from 8 January to 22 January 2022 as follows:
i.From 8.00am to 4.00pm each day on the first (1st) to fifth (5th) days inclusive; and
ii.From 8.00am to 4.00pm on each day on the eighth (8th) to twelfth (12th) days inclusive.
4.That the child Y born in 2021 spend time with the Father:
a. In the period from 4 December to 17 December 2021 as follows:
i.From 8.00am to 8.30am on the first (1st) and second (2nd) days;
ii.From 8.00am to 10am each day on the third (3rd) to seventh (7th) days inclusive; and
iii.From 8.am to 10am each day on the tenth (10th) to fourteenth (14th) days inclusive.
b. In the period from 8 January to 22 January 2022 as follows:
i.From 8:00am to 10:00am on the first (1st) to fifth (5th) days inclusive; and
ii.From 8:00am to 10:00am on the eighth (8th) to twelfth (12th) days inclusive.
Changeover
5.That for the purpose of facilitating the children’s time with the Father changeovers shall occur at the F Shopping Centre in Suburb G.
Travel costs
6.That the parties do all things necessary to release to the Father the sum of $7,400 and that such sum shall be applied by the Father towards the cost of travel to and from Sydney and towards accommodation in Sydney in accordance with Orders 4 and 5 above.
DOCUMENTS
At the Review hearing the mother relied upon the documents identified in a case outline being:
·Applicant Mother’s Application in a Case (Review Application) sealed 28 October 2021
·Affidavit of Ms Harmon filed 24 January 2022
·Affidavit of Mr H filed 27 October 2021
·Affidavit of Ms J filed 1 November 2021
·Affidavit of Ms K filed 1 November 2021
·Affidavit of Ms L filed 1 November 2021
·Affidavit of Ms M filed 24 January 2022
·Affidavit of Ms N filed 24 January 2022
·Affidavit of Dr O filed 4 February 2022
·the Child Impact Report
·Tender bundle
At the Review hearing the father relied on the documents identified in a case outline being:
·Amended Initiating Application filed 14 September 2021
·Notice of Risk filed 7 June 2021
·Financial Statement of Mr Harmon filed 14 September 2021
·Affidavit of Mr Harmon filed 24 January 2022
·Affidavit of Ms P filed 24 January 2022
·Affidavit of Ms Q filed 28 September 2021
ORDERS SOUGHT
In her case outline dated 17 February 2022 relied on for the purpose of the Review hearing, the mother sought the following orders:
2.1That Orders 1and 2 of the Orders made on 7 October 2021 be discharged.
2.2That the children X (born in 2019) (“X”) and Y (born in 2021) (“Y”) live with the mother.
2.3That the Mother be at liberty to live with the children in the Greater Sydney Area.
2.4That Orders 3 and 4 of the Orders made on 7 October 2021 be varied to insert the words “in the Greater Sydney Area” after the word “Father”.
2.5That Order 3(b) of the Orders made on 7 October 2021 delete “four weeks” and insert “twelve weeks” and at 3(c) delete “four week” and insert “twelve week” and delete “each week” and insert “each alternate week”.
2.6The Order 5 of the Orders made on 7 October 2021 be varied by deleting the words “to excess” after the word “alcohol”.
2.7That these Proceedings be transferred to the Parramatta Registry or Sydney Registry in New South Wales.
In his case outline filed on 1 February 2022 the father sought the following orders:
Recovery Orders
1.That the mother forthwith do all things necessary to return the children X born in 2019 and the Y born in 2021 ("the Children") to the Father's care.
2.Pursuant to Section 67Q of the Family Law Act, a Recovery Order issues authorising/directing the Marshal of the Court, all officers of the Australian Federal Police and all officers of the State and Territory police services, and if necessary by force:
a.To find, recover and deliver the child X born in 2019 and Y born in 2021 ("the Children") to the Father, Mr Harmon born in 1988 or such other place as the Father and the person effecting such recovery agree to be appropriate; and
b.To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the
Children may be found.
3.That the Mother, her servants or agents be and are hereby restrained by injunction from removing the Children from the Father until further ordered.
4.That Order 2 to 4 be expedited forthwith.
5.That the Mother pay the Father's costs of and incidental to this application.
Orders sought if Respondent remains in Sydney
1.That the parties have equal shared responsibility for the parties children X born in 2019 and Y born in 2021 ("the Children")
2. That the children live with the father and spend time with the Mother as follows
a.One week of each school holidays.
b.When the mother is in Brisbane for a period of three (3) consecutive nights per week as agreed between the parties.
3.That for the purpose of facilitating contact in accordance with Order 2, the Mother shall be solely responsible for all travel and accommodation costs.
4.That the Children will have video calls with the Mother each Tuesday, Thursday and Sunday Nights between 5:00pm and 5:30pm.
Orders sought if Respondent returns to Brisbane
1.That the parties have equal shared responsibility for the parties children X born in 2019 and Y born in 2021 ("the Children")
2.That the children live with the Mother in the Greater Brisbane Area.
3.That the child X spend time with the Father as agreed between the parties and failing agreement as follows:
a.Every Tuesday and Thursday from 4:00pm to 6:30pm
b.For a period of four weeks, every Saturday from 8:00am until 4:00pm
c.Following the conclusion of the four week period referred to in Order 3(b), from 8:00am Saturday to 8:00am Sunday each week.
4.That the child Y spend time with the Father as Agreed between the parties and failing agreement as follows:
a. Every Tuesday and Thursday from 4:00pm to 4:30pm
b. Every Saturday from 8:00am until 9:00am
Christmas
5.That unless otherwise agreed between the parties in writing X will spend time with the father as follows:
a. In odd years from 5:00pm Christmas eve until 2:00pm Christmas day
b. In even years from 2:00pm Christmas day until 5:00pm Boxing day.
6.That unless otherwise agreed between the parties in writing Y will spend time with the father as follows:
a. In odd years from 11:00am until 2:00pm Christmas day
b. In even years from 2:00pm until 5:00pm Christmas day.
Communication with the child
7. That the children be at liberty to call either parent at all reasonable times.
8. When the children are communicating with the other parent, each parent shall:
a.Ensure that the child is available to receive the telephone call;
b.Ensure that the child has privacy during their communication with the other parent;
c.Each parent shall inform the child that they are at liberty to call the other parent at all reasonable times and the parent with whom the child is at shall assist the child to make such calls they request.
Conduct of the parents
9.That each parent keeps the other informed of their address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
Emergency & medical communication
10.That if one or both of the children are ever injured or require hospitalisation, the parent whose care the child is in, after stabilising the child, shall immediately contact the other parent via telephone and notify them of the child's condition and the other parent be at liberty to attend the hospital to be with the child
11.Should the non-caring parent not answer the call, the parent who is caring for the child will send a text message notifying the other parent about the child's condition.
12.That once the condition of the child is known, the parent who has care of the child, will send an update to the other parent via text message.
13.That all other emergency communication be conducted via text message.
14.In the event that the child is taken to the doctors, the parent who is caring for the child will notify the other parent within twenty-four (24) hours of the treating doctor, reason for the visit and provide a detailed letter from the doctor to report to the other parent detailing the outcome/diagnosis.
15.That the Mother and Father shall inform each other of any professional or other qualified person that they consult in relation to the child and:
a.Advise the other parent of the time of any appointment in order that the other parent may attend if they so wish.
b.Authorise such professional or qualified person to release information to the other parent.
OTHER EVIDENCE
Mother
She leads evidence, she says, that demonstrates the father to have a problem with the overconsumption of alcohol throughout their relationship after moving to Brisbane and after their separation.
She holds the opinion the father’s new partner also has a history of overconsumption of alcohol.
The mother asserts throughout their marriage the father was denigrative of her personally and also her religion. She says this caused her to feel humiliated.
The mother says the father was financially controlling of her.
The mother says at times the father would become frustrated and “punch the furniture or the walls”.
She was particularly upset, she says, by the father’s criticisms of her in the days leading up to their separation.
The mother’s says the father struggled with parenting X from after his birth.
Post separation, prior to her travel to Sydney, the mother says the pattern of the arrangement for the father to spend time with X was that the father would visit X each Tuesday afternoon and Thursday afternoon, and each Saturday morning, sometimes at the former matrimonial home and later away from the home.
Y was born by caesarean section.
The mother developed a secondary infection.
By the time she recovered the border between Queensland and NSW was closed and remained closed until early January 2022.
The father in the period after Y’s birth, whilst the border was closed, commenced having video calls with the children at 4.30pm on Tuesday, at 4.30pm on Thursday, and at 8.30am on Saturday.
In paragraph 66 of her affidavit the mother wrote:
If the Court permits the children to stay with me in Sydney, then I would make sure that the children spend time with Mr Harmon to support their relationship. I am willing to facilitate video calls 4 times a week. In addition to facilitating regular video calls, I want to make sure that Mr Harmon has frequent face-to-face time with the children.
From internet searches the mother understands return airfares Brisbane to Sydney are $300 to $350.
The mother is engaged with a psychologist. She says she has a diagnosis of an adjustment disorder.
In Sydney the mother says she is supported by her mother, the children’s maternal grandmother, with whom she and the children live.
She says she also receives support from her sister, an aunt and her cousin, amongst others.
The mother says she and the maternal grandmother share the rent of the apartment/unit they live in. She says her mother provides her with practical support in caring for X and Y.
The mother says Y is still breast feeding.
Y has problems with sleeping, reflux, weight gain and gross motor skill development.
Y is engaged with a paediatrician, a dietitian, a physiotherapist and at Tresillian.
The mother since January 2022 has returned to full time employment as an educator in Region D.
X attends day care Monday to Thursday.
The former matrimonial home in Brisbane is sold and proceeds are held in a solicitor’s trust account pending property settlement orders.
Investigations led the mother to believe apartments in Suburb R in Brisbane are available to rent between $480-$500 per week.
The mother wrote in paragraph 84:
If I return to my position in the Employer S, I expect that my pay on a part time basis after tax will be about $1,800 per fortnight. For me to return to work in Brisbane, I will need to enrol X and Y into childcare … I would expect it would cost more than $200 per week … I have resigned from my position. I also have no money to pay for a move, deposit or have the capacity to travel there to find accommodation prior to the move.
In paragraph 92 of her affidavit the mother writes:
I am concerned that I will emotionally and physically struggle to cope on my own with the children …
Dr O
He is the mother’s GP and is also Y’s GP.
He says she presents with symptoms consistent with depression and anxiety.
He has received a report from a psychologist the mother has consulted who reports high levels of depression and anxiety for the mother.
The psychologist reports the mother has spoken to her about her fear of the father and reports, the mother says, she is terrified about returning to Brisbane.
The psychologist says the mother reports the following symptoms:
·disturbed sleep patterns
·stress
·difficulties with concentration
·low energy
·panic attacks
·low mood
·feelings of powerlessness
·feelings of uncertainty
·feelings of low self worth
Ms N
She is the mother’s sister, the aunt of X and Y.
She works as a professional.
She says the father discussed with her the difficulties he had caring for X and told her he was using alcohol to cope.
She reports travelling to Brisbane annually and most recently staying with her sister for the period 6‑24 January 2021.
She was present in February 2021 when the father spent time with X. She thought the father was struggling with caring for X.
Since the mother came to Sydney she has stayed overnight on weekends to support her sister with the care of X and Y.
She annexes to her affidavit an email from the paternal grandmother received in October 2020.
Ms M
She is a friend of the mother’s.
She lives in Suburb R.
She is an educator.
She reports conversations with the father wherein he reported not coping as a parent and using alcohol as a coping mechanism.
She reports conversations with the mother following upon the parties’ separation, wherein the mother “debriefed” with her about her conversation with the father.
She also recounts events when she was present when the father spent time with X.
Ms K
She is a relation of the mother’s.
She lives in Suburb U, which is about 45kms from where the mother and father used to live in Brisbane.
Ms L
She is the maternal grandmother.
She lives with the daughter and her grandchildren in a rented 3 bedroom townhouse in Suburb G.
She works as a health care worker.
She took leave in the period after Y’s birth until the end of 2021 to assist her daughter.
After the parents’ separation she travelled to Brisbane in late November 2020 to assist her daughter.
She travelled back to Brisbane in February 2021.
She assists her daughter, since they have lived together, in caring for X and Y.
She also received from the paternal grandmother in October 2020 an email in the same terms as her daughter Ms N.
Ms J
She is the mother’s aunt.
She lives in Suburb V.
She is a health care worker.
Since the parties’ separated she says she has regularly provided “emotional support” for the mother by telephone.
Since the mother’s move to Sydney she has also provided physical assistance on Thursdays and Fridays.
Mr H
He is the mother’s uncle.
He lives in Suburb W in Queensland, about 60kms from the mother’s previous place of employment in Brisbane. He says he can’t provide support nor accommodation for the mother.
Mr Harmon
He lives in Suburb C.
He works as an educator.
He has extended family in Brisbane including his mother and stepfather.
For 3 months following X’s birth, he says the paternal grandmother would stay at their home 2 nights per week to help with X’s care.
He describes the mother’s behaviour at this time as becoming more controlling.
At separation the mother and X stayed in the matrimonial home and he moved to live in the home of his mother and stepfather.
Following separation he says the mother “heavily restricted” his ability to spend time with X, requiring his time with X to be supervised by her or others.
A pattern of visits 3 days per week for hourly periods was established. Those arrangements changed to unsupervised periods after family dispute resolution in late February 2021.
The father is now in a relationship with Ms Q.
The former matrimonial home was sold about the same time as the family dispute conference, with settlement under the terms of the contract in late March 2021. The proceeds of sale remain in a trust account pending property settlement orders.
He says he was not consulted about naming Y, and that the mother refused to provide him with photographs of Y, nor would the mother provide him with her address so he could forward presents.
He says he first spent in person time with Y in late November 2021, at times other than provided for in the Senior Judicial Registrar’s orders, because the mother would not facilitate those times due to Y’s changed routine.
During January 2022 he spent more time with the children. He was also accompanied by his partner who also spent time with the children.
The father describes the mother as having a difficult relationship with her mother which involved regular fighting.
The father says the maternal extended family “have always known the mother suffered from mental health issues”.
In paragraph 114 of his affidavit he describes the mother as suffering “from a borderline personality disorder and that if circumstances arise which inflame Ms Harmon’s already frail mental health, X and Y may be exposed to emotional and psychological harm. I am also concerned that if Ms Harmon’s mental health remains untreated, her behaviour may become directed more towards the children as they get older”.
The father describes his pre‑separation anxiety and depression as now being resolved, describing it as being a response to relational difficulties existing pre‑separation.
About his alcohol consumption the father wrote in paragraph 117:
Since being a father, I rarely consume alcohol and if I do it is generally only one or two standard drinks per week.
He has provided one CDT test in support of the above statement.
He says during their relationship he, by consent, managed the family budget because the mother said “she was not good at budgeting”. He says the mother always retained “online” access to their bank accounts.
In paragraph 125 of his affidavit he wrote:
I deny that I have ever physically threatened, stood over or intimidated” Ms Harmon nor have I ever punched or damaged any furniture or walls.
He denies “discouraging Ms Harmon from practising her faith” and says they had several respectful conversations about that faith.
The father’s partner, Ms Q, is pregnant with their first child.
It is the father’s case that Ms Q would provide, at his request, a residential tenancy for a 6 month period over a 2 bedroom unit she owns in Suburb C in Brisbane at a rent of $400 per week to the mother as a condition of any order made for the mother to live with the children in Brisbane. It is also the father’s case he would consent to a release to the mother from sale proceeds of the former matrimonial home of a sum of $15,000 to assist with the mother’s relocation expenses to Brisbane, with that sum to be characterised at final hearing.
The father submits it is not feasible for him to relocate to Sydney.
The father further submits, it is not possible for him to have a meaningful relationship with X and Y if they remain living in Sydney as the mother proposes. That the time he has been able to spend with them does not support the establishment of a meaningful relationship.
He discloses a before tax income of $1,512 per week, with tax of $379 per week. Combined his tax and weekly expenses are $1,266.
Ms P
She is the paternal grandmother.
She lives in Brisbane.
She describes the mother as “always had a strained relationship with her family”.
She was of the view that the mother was very controlling of the father, and of isolating him from his family.
She nevertheless responded to the parents’ joint request to stay over 2 nights a week at their home after X’s birth to provide assistance.
She says she and her husband will rent the father and his partner, Ms Q, an investment property she owns if the mother is required to return to Brisbane with X and Y.
Ms Q
She is the partner of the father, having commenced a relationship with him in 2020, and started to live together in late January 2021.
She says she has not observed in the course of their relationship the father to overconsume alcohol, nor be violent, nor intimidating.
Child Impact Report
This report was prepared pursuant to an order by a Senior Judicial Registrar, is dated 28 January 2022 and was authored by child court expert, Ms Z.
She interviewed the parents’ electronically on 24 January 2022.
No observations of the children with the parents occurred.
The consultant says the mother told her she wants the children to spend time with the father in Sydney during school term time and in Brisbane during school holidays.
The consultant says the father told her he wants the children to return to live in Brisbane so he can be an actively involved parent in all domains of their life.
Both parents agreed that the children’s primary relationship was with their mother (paragraph 7).
The parents spoke positively to the consultant about the children’s visits with the father, that X had maintained his bond with his father and was excited by FaceTime with his father (paragraph 9).
The mother, in discussions with the court expert, complimented the father about his understanding and management of Y when he cried during visits with his father. As visits progressed Y was reported to become more settled with his father (paragraph 10).
The mother told the court expert that Y went easily with his father at the changeovers during the second block of visits, acknowledging that the father was able to comfort Y. Both parents told the court expert Y was starting to establish a good relationship with the father (paragraph 10).
In the expert’s preliminary opinion the mother’s reported experience of family violence is best understood within the context of the separation and parenting dispute (paragraph 19).
The mother told the court expert returning to live in Brisbane may compromise her parenting capacity (paragraph 23).
The court expert held the opinion, that given the children’s young ages and their stage of development, they would require frequent and regular time with the father to develop meaningful relationships with him (paragraph 25).
The court expert in paragraph 26 wrote:
The other consideration is whether the mother’s parenting capacity will be compromised to the extent that the children’s developmental outcomes and quality of their relationships will be significantly impaired if she returns to live in Brisbane with them, and if orders are made for them to spend significant or equal time with their father.
In paragraph 31 the expert wrote:
If the parents are unable to reach a final parenting agreement, it may be appropriate for the children to continue to live in Sydney on an interim basis, at least until Y can be connected with a professional network to treat and manage his health and developmental needs.
In paragraph 32 the expert wrote:
Whilst the children live in Sydney, they have four FaceTime calls with the father each week. Arrangements are made for the children to spend time with the father for as often as possible during the school term in Sydney and for them to spend block periods of time with the father in Brisbane during school holidays.
DETERMINATION
It is not the subject of any controversy that X and Y’s primary, most important and attached relationship is with their mother.
It is not the subject of controversy that X now has a comfortable and important relationship with his father.
It is agreed the father’s relationship with Y is developing. Y will now separate from his mother and engage with his father. The father is able to soothe and comfort Y if he becomes upset.
The mother had an intention to return to Brisbane after a brief visit with her mother. She seems not to have been upset by the medical decision she should not travel back.
The father at times has likely overconsumed alcohol in something akin to a “binge”. He is not, however, now a problematic drinker nor is he now dependent upon alcohol. He may have, when X was younger, used alcohol as a coping mechanism. An injunction on the father restraining his use of alcohol prior to and when caring for the children will mitigate any risk to the children. There is no evidence that the father has ever been non‑compliant with a court order.
I am not persuaded on the current evidence that the mother’s mental health would become so compromised to impact her parenting capacity if she and the children were required to live in Brisbane. It would be an unwelcome turn of events for her but not more debilitating.
The mother has when she lived in Brisbane been employed, created friendships and received support from her mother, her sister and others.
Both parents struggled in their new role as parents following X’s birth. Y is still being breastfed, but likely not exclusively breastfed, since the mother’s return to work as an educator this year.
The mother has acted overly protective in the past in the restrictions she has placed on the father’s time with the children, tantamount to acting as a “gatekeeper”.
She says she now wants to facilitate time between the children and the father. Untested by cross examination I accept her assertion in this regard.
Considerable cost will be incurred if one parent lives in Brisbane and one lives in Sydney to facilitate time between the children and the father. The Senior Judicial Registrar has already allocated over $7,000 to fund the interim time with orders.
Y is well connected with medical support in Sydney. If he lived in Brisbane similar support would need to be sourced.
X and Y are of mixed racial and religious heritage.
To continue to develop and then grow a relationship with their father, regular frequent in person visits maximise the opportunity for that development and growth. Such periods are not possible unless both parents live in the same city. I accept at this time the father cannot relocate to Sydney.
If the parents live in the same city the implementation of a more meaningful relationship between the children and the father is cheaper and easier to implement.
The father’s case is he cannot and therefore will not relocate his place of residence to Sydney.
The mother’s case is she would find it difficult to relocate her and the children’s place of residence back to Brisbane, it would be costly and she does not want to.
The father’s proposal to overcome the practical difficulties for the mother is by providing her with a six month lease in a 2 bedroom apartment in Brisbane, at a rental she could afford. I have limited evidence to know if she could afford that rent if not working. She possibly could, given before starting her new job in Sydney, she was contributing to housing and living costs and rental for the unit/apartment she shares with the maternal grandmother.
The parents have some history in having been able to agree some past parenting arrangements.
On some occasions, as stated earlier, the mother has made “gatekeeper” type decisions of her own volition.
The mother has taken the lead in decision making regarding Y post birth with little reference to the father.
As both parents seek and propose a relationship for both parents with each child, an order pending further order, for equal shared parental responsibility is in each child’s best interest, especially Y so both can be involved in and seek information from Y’s treaters.
Equal time has not been either child’s experience to date. Each child’s relationship is predominantly with their mother. The children have spent time with the father pursuant to orders made on 3 November 2021 as amended on 9 November 2021. There is no evidence anything untoward for the children has resulted.
For reason of the above, and they each being in the early stage of their development, a predominant period of time with one parent and a shorter in duration period with the other parent is consistent with the best interest of each of X and Y. An equal time arrangement is, sensibly in light of the above, not proposed by either parent and for the above reasons is not in either child’s best interest.
Neither X nor Y is yet of a stage of development, nor strength of relationship, that makes a significant and substantial time with order in their respective best interest.
Frequent shorter duration periods with their father are both developmentally and relationally in each child’s best interest. Such frequency is not reasonably practicable if the parents live as geographically and travel time wise apart, as is the case between Brisbane and Sydney. It is unaffordable for this to occur when each party lives in separate cities.
A day time period on one weekend day a week and a mid‑week afternoon period between each child and the father is for developmental and relational reasons in each child’s best interest.
Adults in Australia usually enjoy a right of freedom of movement and place of residence. Nevertheless the Court has a power under s 114(3) to prohibit a parent’s relocation and to require them to relocate to a place note of their choosing. See Sampson & Hartnett (No 10) (2007) FLC 93‑350.
The frequency of time with periods that have been determined to be in each of X and Y’s best interest cannot with reasonable practicability occur if the father lives in Brisbane and the mother lives in Sydney. That can only be achieved if both parents live in the same city.
When the mother first visited Sydney with X it was for a 6 day period. She had intended to give birth it seems in Brisbane. Pregnancy complications overtook that and then COVID intervened.
The mother and X have now been in Sydney for 12 months to the detriment of X’s relationship with his father, and for Y to have had inhibited as quick a development of relationship with his father as would have been in his best interest.
The Court is required by the Act as set out in paragraph 77 of Sampson, supra to consider the practicalities of life.
For the father to live in Sydney, he has no housing, no job but possibly some prospects for future employment given the mother has found employment as an educator. His partner may resist a move or may come.
He has housing in Brisbane promised by his mother and existing employment.
The mother for her part in Sydney shared rented accommodation with her mother, now has employment and support of extended family and settled medical treatment for Y.
In Brisbane it is not clear if her job at her previous employer remains available and can be guaranteed. I will assume it is forfeited. She has no family support, apart from the father and her mother-in-law about which support she is very uncomfortable. Housing will be made available should she wish as will a lump sum of $15,000 from house sale settlement which will be later characterised. Both cause me to conclude it would be reasonably practicable for her to live in Brisbane pending further order.
I am not satisfied living in Brisbane will compromise her mental health to the extent she states. Clearly it will be an outcome she is unhappy about.
On balance, pending further order, orders that require the children to live with their mother in Brisbane enables as meaningful as possible a relationship between X and Y with their father as is consistent currently with their best interest. The same cannot be achieved if the father visits Sydney.
The move should occur before the end of the NSW Term 1 school holidays to enable the mother to source her own accommodation if she does not wish to take up the father’s offer of rental accommodation. Such a timeframe also enables the mother to seek out in Brisbane treatment arrangements for Y referred to in paragraph 31 of the Child Impact Report.
For these reasons the children will, pending further order, live with their mother and by 26 April 2022 she is to make her and their place of residence in Brisbane, and they are then to spend time with their father each Sunday from 8am to 4pm and each Wednesday from 4pm to 6.30pm. Such periods are consistent with each child’s stage of development and enable further development of a meaningful relationship with their father.
Such orders are reasonably practicable because of the father’s housing proposal and lump sum money distribution proposal. The mother can obtain her own housing if she wishes either immediately or later.
It removes the need for air travel for the father and accommodation costs in Sydney.
Pending further order, these orders are for the above reasons in each of X and Y’s best interest and are also orders that are reasonably practicable.
Further litigation is seemingly inevitable.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley. Associate:
Dated: 24 March 2022
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