Lambard and Lambard & Anor
[2020] FamCA 405
•26 May 2020
FAMILY COURT OF AUSTRALIA
| LAMBARD & LAMBARD AND ANOR | [2020] FamCA 405 |
| FAMILY LAW – CHILDREN – Interim Orders – Where the second respondent maternal grandmother seeks orders for the relocation of the child from Queensland back to Sydney – Where the maternal grandmother’s application is supported by the Applicant mother – Where the father seeks Orders for the child to remain living with him and the paternal grandparents in Queensland – Where the child is 15 months old – Where the mother suffered a catastrophic injury rendering her a paraplegic when the child was seven (7) weeks old – Where the father unilaterally relocated the child to Queensland at seven (7) weeks old – Whether there is an unacceptable risk, including of psychological harm, to the child in spending time with the mother – Consideration of meaningful relationship with both parents – Orders made for the father and the child to relocate back to Sydney pending final hearing – Orders made setting the matter down for a final hearing on an expedited basis and for the appointed of a Chapter 15 Single Expert. |
| Family Law Act 1975 (Cth) s. 4AB, 43(1), 60B, 60CA, 60CC, 61DA, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Border Restrictions Direction (No. 4) (Qld) |
| Attwill & Marden [2018] FCCA 1401 The Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249 |
| APPLICANT: | Ms Lambard |
| FIRST RESPONDENT: | Mr Lambard |
| SECOND RESPONDENT: | Ms Dabell |
| FILE NUMBER: | SYC | 2664 | of | 2020 |
| DATE DELIVERED: | 26 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 15 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Campton SC |
| SOLICITOR FOR THE APPLICANT: | Mcauley Hawach Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Witnish of Arcuri Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT : | Mr M P Kearney SC |
| SOLICITOR FOR THE SECOND RESPONDENT: | Matthews Folbigg Pty Ltd |
Orders
PENDING FURTHER ORDER THE COURTS ORDERS THAT:
Subject to Order (3), within 10 days of the date of these Orders, Mr Lambard (“the father”) shall relocate X’s (“the child”), born … 2019, residence to B Street Suburb C in the State of New South Wales (“the Suburb C apartment”) and shall be and hereby is restrained from thereafter relocating the child’s residence more than five (5) km from that address without the prior written agreement of all parties or an order of this Court.
The child spend time with the such of Ms Dabell (“the maternal grandmother”) pursuant to these Orders:
(a) Each Tuesday and Thursday from 3.00 pm to 6.00 pm; and
(b) Each Sunday from 12.00 noon to Monday 5.00 pm.
Notwithstanding Orders (1) and (2), the father may elect that, instead of relocating the child’s residence to the Suburb C apartment, he may within 10 days of the date of these Orders, take all steps necessary to deliver the child to the maternal grandmother at her address at D Street, Suburb E New South Wales (“the maternal grandmother’s residence”).
In the event of the father electing to act in accordance with Order (3), the child is to live with the maternal grandmother and spend time with the father, when he is in Sydney:
(a) Each Tuesday and Thursday from 3.00 pm to 6.00 pm; and
(b) Each Sunday from 12.00 noon to Monday 5.00 pm.
Changeover, for time spent in accordance with Order (2) or (4), shall occur at McDonalds Suburb F, inside the restaurant.
That Dr G be appointed as the Single Expert in the matter.
The cost of Dr G’s report be borne equally between the parties.
That within three (3) days of these Orders, the parties confer and agree on a Joint Letter of Instruction to the Single Expert.
That the parties make themselves available for interviews with the Single Expert when required, including the father, paternal grandparents and child travelling to Sydney when required.
The matter is set down for hearing for five (5) days commencing on 31 August 2020.
This matter is adjourned for further directions to 25 June 2020 at 11am by telephone using the following details:
(a) Dial …;
(b) When requested, enter Guest Passcode: …; and
(c) You will hear music only until the Court Officer joins the conference.
THE COURT NOTES THAT:
A.Travel between New South Wales and Queensland for the purposes of complying with these Orders is an exemption to the Border Restrictions Direction (No. 4) issued by the Chief Health Officer of Queensland on 10 April 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambard & Lambard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2664 of 2020
| Ms Lambard |
Applicant
And
| Mr Lambard |
First Respondent
And
| Ms Dabell |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before me by way of an urgent Application filed by Ms Lambard (“the mother”) in which she seeks interim parenting orders in respect to the child, X (“the child”) born … 2019, who is now 15 months old.
Since the child was seven (7) weeks old, she has been in the primary care of Mr Lambard (“the father”) who has since relocated the child to Queensland. The father has been assisted in caring for the child by his parents, the child’s paternal grandparents, who reside in Queensland. The mother and Ms Dabell (“the maternal grandmother”) voiced their opposition to the child being relocated.
The situation in which that occurred was consequent upon the mother suffering a catastrophic injury on ... April 2019. The injury was sustained as a result of the mother attempting to take her own life by jumping from a building in circumstances where she was suffering from post-natal mental health issues. As a result of the injuries, the mother is now paraplegic and confined to a wheelchair for life. The mother was hospitalised and/or in rehabilitation in the period from the date of her injury until 30 March 2020. The mother has not spent time with the child since 30 May 2019.
On 27 April 2019, the father moved with the child from New South Wales to the H Region in Queensland. He did so in order to obtain assistance to care for the child from his parents. The father initially indicated that this arrangement would be temporary while the mother recovered. However, in June 2019, after living in Queensland for several months, the father advised the mother that he wished to permanently relocate to Queensland.
The mother contends that, despite repeated requests, the father has not acceded to her attempts to have the child visit and spend time with her. The mother further contends that the father has, on several occasions, cancelled an arrangement whereby the child regularly communicates with the mother by way of FaceTime. The last time that the mother communicated with the child was on 12 February 2020 when she communicated by FaceTime over the internet. The mother has not seen or received a photograph of the child since that time.
The father, on the other hand, contends he has acted reasonably, at all stages, in his attempts to facilitate the child communicating with the mother and members of the mother’s broader family. He contends he has done this by inviting electronic communication but ceased doing so only when the relationship between the mother and himself and the paternal grandparents became dysfunctional.
The mother alleges that, during the course of the parties’ relationship and subsequently, that the father engaged in acts of family violence, primarily in the form of verbal and emotional abuse and controlling and coercive behaviour. The father denies those allegations. The father responds with assertions that it is the mother and members of the mother’s broader family, including, specifically, the maternal grandmother, who has engaged in controlling conduct. The father further contends that, in the period subsequent to the child being relocated to Queensland, the mother has engaged in conduct that constitutes harassment in the form of the content and frequency of messages that she has sent to him and, also, in phone calls that she has made to him requesting that the father facilitate the child spending time with her.
The maternal grandmother, who is the Second Respondent in these proceedings, supported by the mother, seeks orders for the child to be returned to live in Sydney either with the father if he elects to also return or, if that election is not made, for the child to live with the maternal grandmother. That outcome would enable the maternal grandmother to facilitate the child spending time with the mother, who is wheelchair bound, in circumstances where the maternal grandmother would also be in attendance.
Comparatively, the father seeks orders that would retain the status quo for the child to continue to live in Queensland at the residence of the paternal grandparents.
For reasons which I have set out in these reasons for judgment, I have determined that it is in the best interests of the child to make interim orders as sought by the maternal grandmother. The Court has indicated to the parties that the matter will be listed for final hearing in the first week of September 2020. The interim orders will be in place only until that time and it should not be assumed that orders in the same terms will be made following the final hearing.
Evidence
The mother relies upon the following documents:
a)Initiating Application filed 5 May 2020;
b)Affidavit of the mother filed 1 May 2020 together with annexures to that Affidavit; and
c)Notice of Risk filed 5 May 2020.
The father relies upon the following documents:
a)Response to Initiating Application filed 13 May 2020;
b)Affidavit of the father filed 13 May 2020 together with annexures to that Affidavit;
c)Notice of Risk filed 13 May 2020; and
d)Written submissions filed on 22 May 2020 in respect to the issue of the Court appointing a Single Expert, pursuant to Orders made on 15 June 2020.
The paternal grandmother relies upon:
a)Response to Initiating Application filed 11 May 2020;
b)Affidavit of the maternal grandmother filed 11 May 2020 together with annexures to that Affidavit;
c)Letter from Matthews Folbigg to Arcuri Lawyers dated 14 May 2020 annexed to the case outline document for the maternal grandmother filed 14 May 2020; and
d)Written submissions filed 20 May 2020 in respect to the issue of the Court appointing a Single Expert, pursuant to Orders made on 15 June 2020.
Approach and the law – concepts and principles
This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning the potential relocation of a parent and a child in interim proceedings.
In Morgan and Miles (2007) FLC 93-343 (“Morgan”) at [84], Boland J said]:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far-reaching consequences for the child, required the full investigation which can only occur at a final hearing or, now, by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
The decision of the Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. At [81]-[82], under the subheading “How should interim proceedings be conducted?”, the Full Court said:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(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 s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Cowling v Cowling (1998) FLC 92-801 (“Cowling”) at [18], the Full Court said]:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These 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.
Significantly in Masson v Parsons (2019) 368 ALR 583 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that;
Subdivision B of Div 1 of Pt VII [of the Act], which is headed "[o]bject, principles and outline", provides, inter alia, in s 60B(1) that the objects of Pt VII include "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"
[Emphasis in original]
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act ) [Emphasis added]. Those rights include:
·The right “to know and be cared for by both their parents”(s 60B(2)(a) of the Act);
·The 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)” (s 60B(2)(b) of the Act); and
·The right to “maintain personal relations and direct contact with both parents on a regular basis” (s 60CC(3)(e) of the Act).
Section 60B(4) of the Act provides that an additional object of Pt VII “is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”. In O v S FC Palmerston North FAM 2003-054-000859, 21 January 2005 at [38] it was noted that:
…cases have generally referred to Article 9.3 of the Convention which provides "states parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests". Article 9 cannot however, be looked at in isolation by reason of interactions with Articles 7 & 18 of the Convention. The UNICEF "Implementation Handbook for the Convention on the Rights of the Child" 2002 Edition states at page 250 that "This [Article 9.3] together with Article 7 (Child's Right to Know and be Cared for by Parents) and Article 18, implies that the law should presume that, unless it is proved to the contrary, the continued involvement of both parents in the child's life is in his or her best interests"
Competing proposals of the parties
Senior counsel for the mother indicated to the Court that the mother was not pressing for the relief that she has sought in her Initiating Application and supports the proposal of the maternal grandmother, which is further detailed below. As set out in his Response to Initiating Application filed 13 May 2020, the father seeks the following orders:
1. That the Respondent Father have Sole Parental Responsibility in relation to the parties child, X born … 2019.
2. That the parties child live with the Respondent Father.
3. That the parties child spend time with the Applicant Mother in accordance with the Courts Final Orders.
4. That costs on an indemnity basis be Ordered in favour of the Respondent Father.
The solicitor for the father noted, at paragraph 2 of his case outline document, that the father seeks the above orders that the child remain living with him and his parents in the H Region on the basis that:
(a) X has lived in the H Region for a period of approximately thirteen months and has spent every day since 11 April 2019 when she was just seven week of age in the care of the Respondents mother;
(b) To relocate X at the age of thirteen months in consideration of paragraph 2 (a) above could cause significant psychological harm to X;
(c) The mother attempted suicide on ... April 2019 while she was living with X and was the primary carer of X;
(d) Thee mothers discharge psychiatric report indicated that she still fantasised about committing suicide and that the diagnosis of her current mental state is still unclear;
(e) The grandmother has not seen the child nor facilitated contact with the child since 30 May 2019 and as such for X to be relocated into the grandmothers care could cause significant psychological harm to the child;
(f) There has been insufficient independent psychological assessment of the both the respondent and the mother in order for the Court to have sufficient evidence to make an order to relocate X.
As set out in her Response to Initiating Application filed 11 May 2020, the maternal grandmother seeks the following orders:
Pending further Order:
1. Within seven (7) days of the date of these Orders, Mr Lambard (“the father”) take all steps necessary to deliver X (born ….2019) (“the child”) to Ms Dabell (“the maternal grandmother”) at her address at D Street, Suburb E New South Wales (“the maternal grandmother’s residence”).
2. The child live with the maternal grandmother.
3. In the alternative, within seven (7) days of the date of these Orders the father shall relocate the child’s residence to B Street Suburb C in the State of New South Wales and shall be and hereby is restrained from thereafter relocating the child’s residence more than 5km from that address without the prior written agreement of all parties or an order of this Court.
4. The child spend time with the such of the maternal grandmother or father with whom she is not living pursuant to these Orders:
(a) Each Tuesday and Thursday from 2.00 pm to 6.00 pm; and
(b) Each Sunday from 12.00 noon to Monday 5 pm.
5. Changeover shall occur at McDonalds Suburb F, inside the restaurant.
6. The mother, father and maternal grandmother have equal share parental responsibility for the child.
As outlined by senior counsel for the maternal grandmother in paragraph 2 of the case outline document, the maternal grandmother seeks the above orders for the child to be returned to live in Sydney on the basis that:
2.1 X's interests, particularly given her young age, require that X have the opportunity of a meaningful relationship with each of her father and her mother;
2.2 the mother is a paraplegic was discharged from hospital on 30 March 2020 following an attempt to take her own life on ... April 2019 and is unable to travel any distance of significance; and,
2.3 the father has both the means and the opportunity to live in Sydney, including owning (together with the mother) a fully furnished apartment in Suburb C in which he resides at his election;
and such an outcome is in X's interests and can readily be achieved by X living primarily with either of the maternal grandmother (who is willing and able to fufil [sic] such role) or the father (should be be [sic]prepared to remain in Sydney for such purpose).
Parties Contentions and Agreed or objectively verifiable facts
On … 1965, the maternal grandmother was born. She is currently aged 55 years.
On … 1987, the mother was born. She is currently aged 33 years.
On … 1987, the father was born. He is currently aged 33 years.
The mother contends the mother and father met in March 2016 and the father contends the parties met in March 2015. The father further contends that the mother and father commenced cohabitation in or about August 2016. It is not necessary for me to make a finding on these issue as it is not material to my decision at this interim stage of the proceedings.
On … 2017, the mother and father were married.
On … 2018, the parties purchased a unit at B Street, Suburb C (“the Suburb C Unit”).
On 1 December 2018, the parties moved into the Suburb C Unit.
While living at the Suburb C Unit there was an ongoing issue with a hot water system installed underneath the balcony of the unit. This caused an emission of gas. The extent to which that emission of gas caused a problem is an issue in dispute between the parties.
On … 2019, the child was born. She is currently aged 15 months. The mother gave birth to the child at the J Hospital. The birth was an emergency C-section.
After giving birth, the father, mother and the child returned to live at the Suburb C Unit. The mother contends that she did so under protest as a result of her concerns about the presence of noxious gases. The father contends that the mother’s concerns were unnecessarily and inappropriately inflamed by the maternal grandmother.
On 3 March 2019, the mother sent a text message to her general practitioner, Dr K, in which she stated “I want to end my life [Doctor] I want to leave the baby with [the father].”
On 6 March 2019, the mother requested that the father agree to the parties and the child moving to temporarily live with the maternal grandmother.
The father contends that the mother’s concerns with the presence of noxious gases was a result of an irrational fixation arising from her poor state of mental health. In that respect, the father contends that the smell which was of concern to the mother emanated from gum trees outside the parties’ unit block.
On 6 March 2019, the father called an ambulance to take the mother to the L Hospital. Whilst the mother was on the way to the hospital, the maternal grandmother was contacted and advised that the mother was being transported to hospital. The father contends that when the maternal grandmother met the mother and the father at the L Hospital, that the maternal grandmother expressed the view that the remedy for the mother’s concerns was for the mother to move home to the maternal grandmother’s residence. The solicitor for the father submitted that the father was, at that point, understandably “exasperated” and that he left the hospital and said words to the effect, as submitted by the solicitor for the father, that the maternal grandmother and the mother “can deal with it”. On the same day after admission on, 6 March 2019, the mother was discharged into the care of the maternal grandmother and moved into the maternal grandmother’s home with the child.
On 10 March 2019, the mother was admitted to M Hospital following a mental health episode reported by the maternal grandmother. The mother was initially transferred into the psychiatric unit of the M Hospital prior to being transferred to the N Hospital.
On 14 March 2019, the mother was transferred to the Mother and Baby Unit at the N Hospital for treatment for post-natal depression.
The father contends that, in the period that the mother was in the M Hospital, he was the primary carer for the child and he would take the child into the M Hospital on a daily basis so that the child could be breastfed and the mother could express milk so that the father could feed the child in the evening. The father acknowledges that, after the mother was admitted to the Mother and Baby Unit at the N Hospital, the baby moved in with the mother and the mother became the child’s primary carer and remained as such until ... April 2019 when she sustained her catastrophic injuries.
On 15 March 2019, temporary accommodation was arranged for the parties to move from the Suburb C Unit to an apartment on the 8th floor at Suburb Q – P Street, Suburb Q (“the Suburb Q apartment”).
On 16 March 2019, the father returned to work and remained at work until the mother sustained her injury on ... April 2019.
On 8 April 2019, the father notified the N Hospital that he had concerns that the mother would self-harm. The father acknowledges that he expressed concern about the potential of the mother jumping from the balcony of the Suburb Q apartment.
On the morning of ... April 2019, the mother asked the father for access to the Suburb Q apartment and he provided her with information to access the spare key in the letter box. The father attests that he only provided the relevant details to the mother on the basis of her assertion that she would visit the Suburb Q apartment only, in the event that she was granted weekend leave from the N Hospital, after obtaining approval from her treating psychiatrist.
Further on the morning of ... April 2019, the mother released herself from the N Hospital and travelled to the Suburb Q apartment and jumped from the 8th floor unit, falling onto the ground below and sustaining catastrophic injuries which have rendered her paraplegic.
The mother remained in hospital and/or rehabilitation in respect to the period from ... April 2019 until 30 March 2020.
On 11 April 2019, the paternal grandparents travelled from the H Region to Sydney.
On 24 April 2019, the father unilaterally relocated the child to his parents’, the paternal grandparents, residence in Queensland. The mother and the maternal grandmother expressed opposition to this occurring.
On 24 April 2019, the father sent the mother, the maternal grandmother and the child’s maternal auntie, Ms R, the following message:
I've made the decision that [the child] will be going back to the H Region until [the mother]e is recovered[sic]. I believe this is in the best interests of [the child] as she will be receiving consistent care.
It's a freaking hard job and I think it will drag both [the maternal auntie] and I down trying to do this. I don't think you know what you'd be in for [the maternal auntie] (I didn't).
I also believe it is in the best interests of all of us as it will simplify everyone's lives down here and allow us to focus on [the mother] and not argue about a baby each day.
I am sorry it has been put in [the mother’s] head that the baby is getting stolen from her and she will never see the baby again. Unfortunately she will just have to realise that untruth the hard way.
Hopefully after 4-5 months, when [the child] is well less than 1, [the mother] and I can resume caring for [the child].
[The maternal auntie], if you want to get back to City S permanently or temporarily, we will now be free to care for [the mother].
On 27 April 2019, the father, with the paternal grandmother, flew to the H Region with the child and the father remained in the H Region to help, as the solicitor for the father submits, “the child settle in for three days”, then on 30 April 2020 the father returned to Sydney. The solicitor for the father submitted that the father did so in order to be with the Applicant mother “to support her and to try and get the relationship back on track”.
In the period from 30 April 2019 until 27 May 2019, the father remained living in Sydney, during which time the paternal grandmother was the primary carer of the child.
The mother contends that, after moving the child to Queensland, the father committed to visiting the mother, in Sydney, with the child every 3-4 weeks.
On 29 April 2019, the father again returned to work.
In or about May 2019, the father contends that he and the mother separated on a final basis. The mother contends that, in or about April 2019, she and the father separated on a final basis. I make no findings in respect to this issue as it is not relevant to my decision in these interim proceedings.
In May 2019, the father sent electronic messages to the mother which included:
“your mum is the dumbest cottage lady bitch.”
“take control of your life and tell your mum to get fucked or I am out of here.”
“your mum is a dumb interfering bitch”
“get fucked yourself”
[those messages are set out in annexure H to the mothers Affidavit]
Since ... April 2019, the father has only made arrangements for the child to spend time with the mother on 27 May 2019 to 30 May 2019 for a period of one (1) to two (2) hours per day.
On 1 June 2019, the father sent the mother an electronic message stating, “I am moving to the H Region to care for her [the child] as her dad. When you are at [sic] of hospital and we see what your situation is, we can reassess”. The mother replied requesting that the father not move and in response the father replied indicating he would attempt to facilitate ongoing contact and stated that “[the mother, herself] can make every attempt to constantly see her. Obviously as she gets old that will all get easier”.
On 6 June 2019, there was further communication between the mother and the father in which the mother asked when she would again be able to see the child. The father responded with words that included stating, “There is no future plan and I have no appetite into putting the effort into working out another plan right now.”
On 28 June 2019, the father sent the maternal grandmother an email, copying in the mother, that stated:
Dear [the maternal grandmother],
I had been trying to arrange for [the child] to visit you from the 8 - 12 July.
However, recent events have prompted me to seek legal advice.
I have been advised that it is my legal obligation to Act in the best interest of [the child].
Furthermore, the advice I have received is that it is not in [the child’s] best interest to be going back to Sydney, the visit is unlikely to benefit [the child] and therefore it is not in [the child’s] best interest.
Whilst I was hoping to balance out acting in [the child’s] best interest with compassion for your circumstance, I must now act in [the child’s] best interest and this means [the child] will no longer be visiting Sydney.
On 3 July 2019, the following electronic message exchange occurred between the parties:
The Mother: “When will I get to see [the child] [Mr Lambard]?”
The Father: “That’s a question you have to answer for yourself [Ms Lambard]. [The child].. will not be travelling… it’s up to you to get yourself better, out of hospital and in a position to see [the child]”…
The Mother: “I’m her mum. I need to see our daughter”
The Father: “Well you are going to have to figure out how you are going to do that [Ms Lambard]. I hope you can make arrangements to get to the H Region to see our daughter as well.”
The Mother: “I’m in hospital [Mr Lambard]”
The Father: “I’d suggest you get out of hospital sooner rather than later then.”
On 18 July 2019, the father sent an email to the maternal grandmother in which he said:
I don’t believe it is in [the child’s] best interest to meet with her birth mother who is mentally unfit, deceitful, suicidal & filled with guilt.”
On 22 July 2019, the father contends that he relocated to the H Region permanently.
On 5 September 2019, the mother sent an electronic message asking that the father bring the child to Sydney to visit her. The father responded with words that included “I will simply not do anything that harms the development and welfare of our little girl.”
On 7 September 2019, the father sent the mother the following email:
I already engaged a lawyer for legal advice regarding [the child], the windup of our marriage and the unit (sic).
My proposals below are in accordance with this legal advice.
…
[X]
Legal advice I have received has informed me that as the Father and [the child’s] primary carer, / am legally responsible for [the child’s] welfare and best interests.
By relentlessly requesting that I bring [the child] to see you, you are that I breach my duty of care and responsibility to [the child], I simply will not do this (sic).
On 9 September 2019, the mother sent a message to the father requesting a photo of the child. The father replied to that message saying that “She’s not a toy that presents for pretty photos all day… I’m over it [Ms Lambard], just get a court order specifying what you want and we’ll go from there”.
On 28 September 2019, the father sent a message to the mother saying, “In the future, I’ll be sending you photos and videos on Wednesday and Sunday nights, no need for you to ask for them”.
On 6 October 2019, the father ceased sending photos of the child to the mother.
On 21 October 2019, in response to the mother’s request for the father to send a photo of the child, the father replied by way of electronic message stating:
“No, you’ve done nothing to move our situation forward aside from asking endless questions without any action. In effect you are stealing from [the child] and I by racking up unnecessary expenses, depleting my time and my families time in having to chase you for not meeting your responsibilities and commitments. Meet your responsibilities and commitments which is what we need and ill give you what you want”.
On 21 October 2019, the parties had a further exchange by way of electronic messaging. In response to the mother’s request for the father to bring the child to Sydney to visit her, the father responded with messages that included the following:
The onus is on Mum to recover and visit her daughter
…
Do you want [X] to know her mum? If so, make it happen…
Further on 21 October 2019, in response to the mother’s request to be provided with a photo of the child, the father replied with words that included:
However that’s only one issue you are behind in. You need to respect and adhere to all your obligations and responsibilities.
It’s my understanding that my parents are still awaiting payment for your share of our interest costs and I am awaiting payment to the expenses and I have paid on your behalf.
On 6 November 2019, the legal practitioners for the mother sent an email to the father in which they requested that the father advise them of what he proposed as interim parenting arrangements which they requested should include particulars of:
1. time with [the child] while [the mother] is a patient at [T Hospital]; and
2. time with [the child] for when [the mother] is discharged from [T Hospital\.
The email dated 6 November 2019 indicated that the mother agreed to the maternal grandmother being present at all times that the child was spending time with the mother.
By email dated 10 November 2019, the father provided a lengthy response to the email from the mother’s solicitors dated 6 November 2019 in which the father asserted:
·That the mother has suffered lifelong mental consequences as a result of having been exposed to domestic violence when she was a child.
·That the mother’s mental illness is “as a result of her upbringing and someone should be protecting her from further pressure from her mother is irrational demands and her mother’s inability to resolve any problem”. [Emphasis in original] That the mother had an extra marital affair “during her pregnancy and continuing”.
In that email dated 10 November 2019, the father proposed, under the subheading “interim parenting plan”, the following:
1. Parental Responsibility
I will make decisions for [the child] until such time that [the mother] is medically and practically capable of making decisions for herself, and [the child], without the interference of her mother [the maternal grandmother].
2. Living Arrangements
[The child] will reside at U Street, Suburb V QLD ("[the child’s] Home") and be cared for by myself and her 2 grandparents [the paternal grandparents] whilst I am at work.
3. Visitation
[The mother] is welcome to visit [the child] at [the child’s] Home with professional supervision or utilise digital resources, once a week, to maintain a relationship with [the child].
4. Visitation with other relatives
[The mother’s] family is welcome to visit [the child] at [the child’s] Home with professional supervision.
5. Maintenance of the child
I will continue to work and financially provide for [the child], which can be reviewed if the situation changes with [the mother’s] income or compensation for lost income is received by [the mother] (retrospectively or future).
6. Parental Development
[The mother] is to enrol in and complete the Circle of Security parenting program by 1 August 2020.
7. Changes to this plan
Anytime relevant information arises that will result in a benefit to [the child].
[Citations omitted]
Without setting out all of the assertions, as set out in his email dated 10 November 2019, it is clear that the father holds a poor opinion of the maternal grandmother. This includes asserting that the maternal grandmother “is a common denominator in mental illness within the [maternal] family”.
In the 10 November email, the father also explained the arrangement that had been put in place for communication between the mother and the child as being:
Since April, [the mother] was meant to make daily FaceTime calls with [the child] (her mental health team encouraged [the mother] to make these calls as well), [the mother] has tried just once; and
I created a "[The child] Songs" and "[the child]" [electronic messaging] group to share photos and videos of [the child], and for [the mother] to record nursey rhyme videos that we could stream to a TV:
[The mother] recorded video(s) toward the end of April 2019 only;
[The mother] removed herself from the "[the child]" group on the 26/8/2019.
The father asserted, in that same email, that the mother recorded a video towards the end of April 2019, it being noted that the mother had sustained her catastrophic injury on ... April 2019.
The father acknowledged his understanding that the mother enjoyed viewing the photos of the child but, he asserted, the mother “did nothing in return for [the child] or to maintain a relationship with [the child]”. The father further asserted that the maternal grandmother “has abused some photos [he] sent to her of [the child], placing them on social media and using a different name that was not of endearment”.
In the period from 11 October 2019 until 11 November 2019, the father suspended providing photographs to the mother.
On 10 December 2019, the father’s solicitors sent to the mother’s solicitors a letter which is annexure O to the father’s Affidavit which states as follows:
We refer to the above matter and to recent developments in relation to same.
Parenting
Our client instructs that your client and her mother '[the maternal grandmother]' have continued to demonstrate derogatory and unacceptable behaviour toward our clients parents [the paternal grandparents] and as a result they are no longer able to communicate with either [the mother] nor [the maternal grandmother] in order to facilitate FaceTime between your client and the parties child, [X].
We note that our client is still committed to facilitating contact between [the mother] and [the child] despite your clients continued derogatory behaviour toward our client and his family and as such will continue to make [X] available to FaceTime with [the mother] three time each week.
Financial
We are instructed that your client continues to refuse to comply with all reasonable requests from our client to meet her obligations in regard to the parties' finances and in particular, her share of the outstanding debt associated with the costs pertaining to the parties' former matrimonial home.
In consideration of the above and the impact same is having on the parties' net property pool can you please advise as to whether your client is prepared to meet her share of the aforementioned costs associated with the parties' former matrimonial home?
We note that your client's refusal to meet her above mentioned obligations negatively impacts on both parties financial position and that any outstanding monies owed by your client in relation to the former matrimonial home will be accounted for in her portion of the parties property settlement.
On 30 December 2019, at approximately 1pm, the mother sent a text message to the father in which she said:
Let me know what you want me to do so that you will allow me to spend time with my own daughter?
On 31 December 2019 at approximately 10:30pm the father responded:
There is nothing you can do [the mother] aside from moving to a care/rehabilitation centre in the [H Region] or Brisbane.
If you want better relations between yourself and [the child’s] carers, I suggest you respond to my solicitor letter regarding our outstanding expenses and rental compensation we are owed.
On 1 January 2020, 3 January 2020 and 4 January 2020, the mother sent further text messages to the father in which she repeated her request for the father to bring the child to Sydney to visit her. By text message on 4 January 2020, the father responded:
As I've advised you many times [the mother], I've received legal advice that I can not subject [the child] to such travel until she is much older as it is not considered to be [the child’s] best interest to subject her to the stress of travel and break in her routine.
If it was in [the child’s] best interest you would have been able to obtain a court order by now forcing me to do so but you haven't.
I simply can't do what you are asking me to do and that is not going to change for quite sometime.
It's up to you to make arrangements for you to visit your daughter.
On 4 January 2020, a further exchange of text messages occurred between the parties in which the mother repeated her requests and presented arguments as to why the father should endeavour to travel with the child to Sydney. The father responded to those requests of the mother and also responded to the arguments she presented. At approximately 5.30pm on 4 January 2020, the mother sent a text message saying “please tell me when you are coming. With our daughter. I have presents for her”. The father responded to that message, “Probably in 2024”, it being noted that, at that time, the child would be five (5) years of age.
On 21 January 2020, the father applied for a Protection Order against the mother at the Suburb LL Magistrates Court in Queensland. At paragraph 82 of his Affidavit, the father attests that his reasons for making such an application were the mother’s “continued harassment of both me and my parents” which he contended constituted emotional abuse.
On 5 February 2020, the father’s Protection Order Application was struck out at the first return date.
On 12 February 2020, the father sent an email to the mother in which he said:
I am writing to inform you that I am withdrawing the proposed parenting plan and my offer to resolve outstanding expenses and payment of rental compensation.
Over the last several months, myself and my solicitor have gone to great lengths to propose:
1. A practical interim parenting plan that ensured regular contact between yourself and [X]; and
2. A resolution to outstanding expenses we owe and rental compensation we are entitled to receive.
As previously mentioned to you, I was open to your share of the rental compensation being paid directly to you, provided you acknowledged and would pay your share of the expenses.
Despite this, myself or my solicitor have not received any communication from you or your solicitor despite our numerous approaches.
I am not even sure if Pierre is still representing you as it seems bizarre for a solicitor to not respond to reasonable and open approaches.
Instead, what myself and my parents did receive from you was a barrage of WhatsApp messages, missed calls, email and SMS messages which were nearly all unrelated to the above.
I felt abused, it defiantly affected me and I am surprised my domestic violence order was struck out, but that's the way it goes.
Forward all future correspondence direct to me.
Considering you were obviously not satisfied with my proposed parenting plan and offers to resolve issues relating to our unit, I'll await your proposals instead.
On 30 March 2020, the mother was released from rehabilitation and she now lives at Suburb W in the State of New South Wales in a two-bedroom apartment and she is supported by a 24-hour carer provided through the National Disability Insurance Scheme (“NDIS”).
Presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) 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.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In circumstances where, in these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including that each has engaged in conduct that would constitute family violence as defined in s 4AB of the Act, it is not appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings.
In those circumstances, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply.
The Court is, therefore, at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.
Determining what is in the best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
In this matter, both parties acknowledge that it is in the child’s best interests to have a meaningful relationship with both of her parents, in terms of s 60CC(2)(a) of the Act. The father, however, contends that, in the circumstances of this case, the Court should give more weight “to protecting the child from psychological harm than facilitating a meaningful relationship between the child and the parent [being the mother] that poses that risk”.
In Sigley v Evor (2011) 44 Fam LR 439 (“Sigley v Evoy”) at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
It is important to appreciate that the legislative requirement is for the Court to consider making an order to promote the child having a “meaningful” rather than “optimal” relationship with both parents: Champness & Hanson (2009) FLC 93-407 at 83,502. In other words, a relationship may be less than optimal but nonetheless meaningful: Godfrey & Sanders (2007) 208 FLR 287 (“Godfrey”) at [33], [36]; Sigley & Evor at [182]. Moreover, the consideration of how a “meaningful relationship” is defined needs to be determined in the circumstances of each case: Godfrey (supra) at [36]; M & S (2007) FLC 93-313 at 81,387.
In a summary of evidence relied upon by the father to support his Application for a Protection Order in the Suburb LL Magistrates Court, which was filed on 21 January 2020, the father acknowledged that, at or about the time that the child was relocated to Queensland, he and the paternal grandmother promised the mother that the child would visit both the mother and the father, who at that time, continued to live in Sydney, until the mother and the father “could resume caring for [the child] full-time”.
In a letter from the father’s solicitors to the mother’s solicitors dated 15 November 2019, it was asserted that the father “understands the importance of facilitating a meaningful relationship between [the child] and her mother”.
The solicitor for the father, in his oral submissions, confirmed that the father “has no intention of not facilitating a meaningful relationship” between the child and the mother. He submitted that the father wants to commence with “a starting point where professionals can establish quality communication and contact between the applicant mother and the child and then, from there, extend it”. It was further submitted that, by adopting such an approach, “the child’s risk of psychological harm is minimised”.
When pressed as to what the father proposed as the method whereby the child would be safely reintroduced to the mother, the father proposed that there be electronic communication between the child and the mother for 15 minutes, three (3) times per week for a period of two (2) to (3) months. It was contended, however, that such communication needs to be in accordance with “guidelines” dealing with “the way that the applicant mother communicates with the grandparents, and [them] not being abused, [them] not being bombarded”. With that “first building block” established, then it is proposed, by the father, that the amount of time of the communication between the mother and the child would then increase either in terms of the number of days on which communication would occur or the length of the communication.
When asked as to when the father proposed that physical contact would occur between the child and the mother, the solicitor for the father submitted that it was proposed that such contact would occur with the father flying the child to Sydney and the child’s time with the mother being supervised “with a professional to observe the reaction that [the child] has with the mother” and it is proposed that, over time, the face-to-face time “can become more frequent as well”. When pressed as to when such face-to-face time could commence, solicitor for the father contended that it was proposed that it could perhaps occur “in September/October of this year” and that between September and Christmas of this year it would occur “once every two months” and then “once a month after that for a period”. In terms of the amount of time that the child would spend with the mother when the child was in Sydney, the solicitor for the father contended that it was proposed that it would be for “three hours on a Saturday then three hours on a Sunday”. It was proposed by the solicitor for the father that the time would be spent in circumstances where there would be a “professional in there assessing [the child’s] reaction” and “making sure that both parties are instructed into the most effective way of communicating with each other and the child so that there is minimal blow-back and effects of that adjustment for being reintroduced to the mother’s life”. It was proposed by the solicitor for the father that, with the benefit of that instruction from a professional, there would be an increase in the amount of time that the child spent with the mother “forthwith after that”.
The mother and the maternal grandmother contend that, unless the situation where the child lives in the H Region and has not seen her mother since 30 May 2019 is addressed, the child will likely have no future parental relationship with her mother. In that respect, senior counsel for the maternal grandmother submitted that the evidence establishes that:
…it is patently clear that the father and his parents have no intention of supporting any relationship between X and her mother. Indeed, the father has gone so far as to seek the issue of a Queensland Protection Order to prevent the mother contacting him or his parents.[1]
[1] Paragraph 10 of the maternal grandmother’s case outline document.
In respect to the issue of the child having a meaningful relationship with both parents, I am satisfied that orders requiring the child to return to live in Sydney would provide the child with the opportunity of having a meaningful relationship with each of her parents. I am not, however, satisfied that the alternative proposal advanced by the father would facilitate the development of such a meaningful relationship. This is particularly so in the period between the date of this decision and the matter being listed for final hearing in the first week of September 2020. That is because I am not satisfied that the father’s proposal for the child to have limited electronic communication with the mother for a period of approximately three (3) months followed by bi-monthly visits to Sydney, in circumstances where he has proposed the child would spend limited supervised time with the mother, is sufficient to establish a meaningful relationship between the mother and such a young child.
Unacceptable risk
Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 (“B and B”) at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent is to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
In M and M (1988) FLC 91-979 at 77,081 (“M and M”), the High Court said:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].
Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, in ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249, said:
…unacceptable risk in the High Court’s formulation [in M and M (supra)] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
In the article referred to above, the Hon. John Fogarty AM wrote:
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’.
In interim proceedings, it is difficult to identify unacceptable risk and determine whether reasonable safeguards could mitigate against that risk. In Cowling v Cowling (supra) at 780, the Full Court said, in respect to interim proceedings:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect, in SS v AH [2010] FamCAFC 13 (“SS v AH”) at [100], the majority of the Full Court (Boland and Thackray JJ) said:
…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.
It is to be observed that the reference in SS v AH (supra) to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
The solicitor for the father contended that the father’s concerns regarding the mother’s psychological health are justified having regard to the fact that, at a time that she was the primary carer of the child in the N Hospital and had a medical team supporting her, “she’s decided to attempt to take her own life”. It was contended that, in that situation, the father is justifiably concerned about the well-being of the child in the mother’s care.
In this matter, the father identifies, at paragraphs 86 and 87 of his Affidavit, his concerns for the emotional well-being of the child in the mother’s care which he asserts are as follows:
• That [the mother] has a long-term plan for committing suicide via Euthanasia;
• That [the mother] is currently taking the schedule eight medications Oxycodone and Tapentadol;
• That her mental health practitioners had concern for her exhibiting suicidal ideation between 19 July 2019 and 6 August 2019;
• That [the mother] is currently on no less than 24 medications;
• That the current psychiatric diagnosis of [the mother] is UNCLEAR, with the presence of mixed anxiety and depressive symptoms as well as possible, non-sustained psychotic symptoms.
At paragraph 87 of his Affidavit, the father also expresses what he describes as:
…concerns that [the mother] and her family do not acknowledge the impact that their toxic and controlling behaviour has on [the mother’s] mental health. [The mother’s] correspondence with me as observed in the annexures in this affidavit indicate that she blames me for the mental condition that lead to her attempting to kill herself and that she does not take responsibility for her actions or the fact that she was in anyway responsible for making the decision to jump of the balcony on that tragic day on the …th of April 2019.
In that paragraph, the father further expresses concern that the mother “continues to ‘fixate’ on issues due to her anxiety and continues to not address the actual issue of her anxiety itself”.
In expressing concern regarding the mother’s current psychological health, the solicitor for the father contended that it was significant that the “mother attempted suicide while she was the primary carer of [the child]”. It was not, however, suggested, that the child was physically present with the mother at the time she attempted to commit suicide on ... April 2019. It is clear that the mother left the child in the care of staff at the N Hospital prior to travelling to the unit where the attempt occurred.
The solicitor for the father referred to the Discharge Summary which is annexure “00” to the mother’s Affidavit which, it was contended, establishes that the mother “still ideates euthanasia. She still has a propensity to ideate committing suicide, notwithstanding she is still on 24 different medications...”
It was contended that, even though it is proposed by the mother and the maternal grandmother that the child spend time with the mother in the company of the maternal grandmother, there still remains an unacceptable risk to the child because if the mother did “have contact directly with her child then she did act out her fantasies or one of her fantasies of committing suicide or attempting to again”, the psychological harm to the child would be “significant”. Indeed, it was submitted that such harm could be “enormous” and “lifelong”.
Further, in paragraph 91 of his Affidavit, the father expresses the belief that the maternal grandmother “poses a significant risk [to the child]” and that he believes “an independent family law court expert is required to assess [the maternal grandmother and the mother] in order to ascertain their suitability to spend time with [the child] and whether an extensive independent psychiatric assessment is required”.
It was also noted that, at paragraph 28 of the father’s Affidavit, the child “spent every day of her life being cared for by the father’s mother since the age of 7 weeks”. In that context, it was contended that the Court should have regard to “the potential psychological harm if [the child] was removed from the grandmother and the father in that environment”. Specifically, it was contended by the solicitor for the father that, “that consideration needs to have more weight than the meaningful relationship that the child may have with the mother”.
It was contended that, before considering a change of residence, the Court should obtain an “objective assessment” of the child’s health, the maternal grandmother’s health and that of the mother and, further, there should be an “independent psychiatric assessment of all the parties concerned”.
On the other hand, senior counsel for the maternal grandmother submitted, by reference to the decision of Burr J in Partington and Cade [2008] FamCA 945 (“Partington and Cade”), that:
As Kelly and Lamb say in their article “Developmental issues in relocation cases involving young children: When, whether and how?” (2003) 17(2) Journal of Family Psychology 193 at 202:
”For very young children, the deterioration or termination of attachment relationships with non-moving parents may create psychological risks with long-term consequences. To minimize the price children pay in such circumstances, steps must be taken to promote continued relationships with both parents by attempting to discourage or delay moves with very young children, and by ensuring that children continue to have regular and meaningful interaction with their non-moving parent.”
As I have noted, it is clear that, in assessing whether there is a risk that something may happen that presents a risk to a child, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton (2015) 53 Fam LR 621 at [99].
The question, therefore, becomes whether the father has, in these proceedings, established a proper basis for his assertion that the child faces an unacceptable risk of emotional and psychological harm in spending time with the mother as proposed by the maternal grandmother and supported by the mother.
The answer to that question is that he has not, in these interim proceedings, satisfied the Court that there is such a risk. In that respect, it is noted that the father contends that the mother’s mental health issues are not the result of post-natal factors but rather are the result of biological susceptibility and long-standing environmental circumstances to which the mother was exposed as a child and adolescent. It is to be further noted that the father contends that the mother continues to be a suicide risk. However, it has not been suggested that the child will be left in the unsupervised care of the mother in the period between now and when the matter is listed for final hearing in September of this year. To the contrary, the evidence is that the maternal grandmother would be present on all occasions that the child spends time with the mother.
The Court will, at final hearing, be in a position to assess the evidence presented by each of the parties in determining the mother’s long-term mental health prognosis, whether that prognosis presents a risk to the child and whether any such risks, if found, can be mitigated by appropriate measures such as, for instance, the provision of supervision.
At that time, the Court will also be in a position to assess expert evidence as to the potential adverse consequences for this child of the parties’ respective proposals in respect to the proposed living arrangements for the child in the future. This includes the impact of potential final orders permitting the father to permanently relocate the child’s residence to Queensland and whether it would have any adverse consequences for the child, including, as submitted by senior counsel for the maternal grandmother by reference to the decision of Burr J in Partington and Cade (supra), the impact upon such a young child of being separated from her mother.
Accordingly, I have found that the father has not established, to the Court’s satisfaction, that, at this interim stage of the proceedings, there is a realistic possibility of the child suffering emotional and psychological harm in spending time with the mother in the circumstances proposed by the maternal grandmother. In making that finding, I note, however, that it can reasonably be anticipated that the child would experience distress in moving from the care of her father and/or paternal grandmother into the care of the maternal grandmother.
Whether or not such separation occurs, however, depends upon the decision of the father and paternal grandmother in light of the orders that I make in these interim proceedings. That is, if the father and/or the paternal grandmother elect to accompany the child to Sydney, in the months until this matter is listed for hearing, the child will live predominantly with the father and spend limited time with the maternal grandmother. In other words, there will not be a dramatic change in the child’s current circumstances where she would continue to predominantly live with the father and possibly, if she so choses, the paternal grandmother.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations for determining what is in a child’s best interests. Those considerations can conveniently be grouped under the following topics:
a)Issues relating to the children – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.
Issues relating to the child - their views, level of maturity, culture and relationships
Any views expressed by the child
Section 60CC(3)(a) of the Act requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
In light of the child’s young age, this consideration is not relevant.
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) of the Act requires the Court to consider 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.
The child has been living with the father and the paternal grandparents since April 2019. The mother accepts that the child has a close relationship with the paternal grandparents.
In the period subsequent to 27 April 2019, the child has not seen the mother other than for a period of approximately one (1) to two (2) hours per day over a three-day period in May 2019.
In the period from the mother being discharged from M Hospital on 6 March 2019 until 9 March 2019, the mother and the child lived with the maternal grandmother at her home. The maternal grandmother is 55 years of age. Her husband passed away in July 2014. She resides in Suburb E in Western Sydney. The mother assisted the father to care for the child in the period subsequent to the mother sustaining her catastrophic injury on ... April 2019 until the father moved the child to Queensland on 27 April 2019.
At paragraphs 67 through to 72 of his Affidavit, the father describes the child’s relationship with the paternal grandmother. In those paragraphs, the father notes that the child has “not spend a single day away from [the paternal grandmother]” since the child was relocated to Queensland and the child becomes distressed if the paternal grandmother leaves home for even a relatively brief period to undertake shopping and the like.
At paragraph 75 of his Affidavit, the father attests that “throughout August, September and most of October 2019 neither [the mother] nor her family ever requested that me or my family organise FaceTime between any one of them and [the child]”. In that context, it was submitted by the solicitor for the father that, insofar as the Second Respondent maternal grandmother, supported by the Applicant mother, seeks orders for the child to spend time with the maternal grandmother to facilitate the relationship between the child and her mother, it is relevant that the maternal grandmother has not, in the period since the father relocated to the H Region, “requested to come and fly and see [the child] in the H Region”. This, it was submitted, failed to occur despite the fact that the father informed her that “she was welcome to spend time with the parties’ child under supervision”. Indeed, it was contended that the Court should have regard to the fact that the maternal grandmother has not requested FaceTime with the child nor has she requested “any contact at all”.
As I will set out in greater detail below, a concern that I have in this matter is that, unless and until the child spends time with her mother and maternal grandmother, the Court is not in a position to effectively and fairly weigh the parties’ competing proposals for the future care of the child. This is because the Court would be faced with a situation where the only meaningful relationship that the child has had, between April 2019 and the date of the hearing, will have been with the father and the paternal grandparents.
In that context, for instance, the observations of a single expert appointed to assist the Court in making a determination as to what final orders are in the best interests of the child would not be in a position to meaningfully observe and assess the interactions between the child, her mother and her maternal grandmother, in circumstances where the child will have had, at best, limited FaceTime communication with the mother and perhaps limited time on one (1) Saturday and one (1) Sunday in a bi-monthly visit that the father proposes should occur after a period of two (2) to three (3) months of electronic communication.
The fact that the mother and the maternal grandmother have not had the opportunity of establishing such a relationship has been due, in large part, to the decision made by the father to relocate the child to Queensland in April 2019. That decision was made despite the strong objections of the mother and maternal grandmother.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) of the Act requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
A matter of significance in these proceedings is the fact that the child is only 15 months of age and, other than for the first seven (7) weeks of her life, has effectively had no relationship with her mother or maternal grandmother. The Court will, at the final hearing, require evidence to be presented by the single expert as to the potential long-term consequences for the child if this situation continues.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) of the Act requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
This consideration is not relevant.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) of the Act requires the Court to consider the extent to which each of the parties has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
An unresolved issue of controversy in these proceedings is the extent to which the father has been spending time in Queensland and in Sydney in the period subsequent to the child being taken to Queensland. In his oral submissions, the solicitor for the father acknowledged that, as at August 2019, the father was “still working and travelling to Sydney”. Further, also in his oral submissions, the solicitor for the father contended that, in the months immediately preceding the father’s consideration of making an Application for a Protection Order, including in November 2019, one of the factors which motivated the father to commence such an Application was that “he was trying to work in Sydney” while at the same time providing for his daughter and family.
The Court is, however, not in possession of information that establishes the amount of time that the father spent in Sydney after the time that he attests to having moved to Queensland in May 2019. This will clearly be an important consideration at the final hearing in terms of the Court balancing the parties’ competing proposals and, in particular, any practical difficulties associated with their respective proposals.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) of the Act requires the Court to consider the extent to which each of the parties has fulfilled, or failed to fulfil, their obligations to maintain the child.
It is acknowledged that, in the period subsequent to April 2019, the child has been maintained by the father and supported by the paternal grandparents in doing so.
The capacity of each of the child's parents
Section 60CC(3)(f) of the Act requires the Court to consider the capacity of each of the parties, and any other person, to provide for the needs of the child, including their emotional and intellectual needs.
The father contends that the mother has suffered poor mental health from prior to the birth of the child. The father acknowledges that the mother moved home to live with the maternal grandmother for a period of approximately two (2) weeks in December 2018 as a result of the mother’s concern regarding a gas leak in the vicinity of the unit in which the parties lived. The father contends that, from that point, the mother’s mental health issues escalated in the New Year of 2019 to the point where the mother’s treating psychologist contacted the father, while she was on holidays in Country Y, advising him that he should seek psychological assistance for the mother “due to the potential of her committing suicide”. In that respect, the father referred to a text message sent by the mother to her treating psychologist, Dr K, dated 3 March 2019 in which the mother said, “I want to end my life Dr K. I want to leave the baby with [the father].”
The father attests that he moved to Queensland to obtain support from his parents in the care of the child. In that respect, at paragraph 46 and 47 of his Affidavit, the father states that, in the aftermath of the mother’s attempted suicide, he “became extremely unwell due to stress” and was prescribed anti-depressant and anti-anxiety medication on that occasion. The father was also referred to a treating psychologist, namely Dr Z. The father attested to having feelings of anxiety as to how he would cope looking after the child without the assistance of the child’s mother.
The father states that the child has been well cared for during the period she has been in Queensland, which has been for the duration of her life since she was seven (7) weeks old. In that respect, the father attests that the standard of high-quality care provided by the paternal grandmother is evidenced by the fact that when the child was born she was “born into the 3rd percentile for weight and remained well below average for her age for a prolonged period”. The father asserts that under the care of the paternal grandmother the child “is now above average and approaching the 54th percentile for her weight and age and is a 'picture of health' and 'doing amazingly well”.
In summary, the solicitor for the father contended that the father’s reactions and response to the mother’s communications, including her requests to see the child and to receive photos of the child were not a “unilateral nasty piece of work” but rather were “understandable and justified”.
This included the father’s actions in applying for a Protection Order in the Suburb LL Magistrates Court in January 2020. In that respect, it was contended that the mother’s solicitors had not responded to communications from the father’s solicitors in developing a proposed parenting plan and, at the same time, it was contended that the mother was “bombarding” the father with “emotionally abusive messages” stating, “I want to see my daughter.”
It was contended that, as a result of the nature of the communication received from the mother, the father became “distressed and dishevelled” and it was determined, by the father, that the father could not facilitate FaceTime every day “because it’s just irrational”. It was, therefore, proposed that arrangements be made for the mother to have FaceTime with the child on three (3) occasions per week.
The immediate events which, it was contended, led to the father filing an Application for Protection Orders was summarised, by the solicitor for the father, as follows:
So, [the father], he’s trying to develop a relationship in a way where we can start from a point and develop it, and he has no opportunity to. The Applicant mother bombards, continues to bombard my client with messages. It escalates through the end of December and early January, and my client, in a state of desperation, makes an Application to stop this from happening so he can get on with raising his daughter and working.
It was further contended that the father acted reasonably in suspending communication with the mother, on 12 February 2020, because the messages from the mother still continued. In that context, it was contended that, before the communication was suspended by the father, he was “getting bombarded with messages” and there was no agreement from the mother or her lawyer “as to how this thing should start and having professionals negotiate a way that’s going to enable her to have a relationship with the child”.
In considering the father’s conduct in terminating communication between the mother and himself and, necessarily, the child in the period subsequent to 12 February 2020, reference was made to paragraph 85 of the father’s Affidavit that, on 12 March 2020, the father made contact with the Telephone Dispute Resolution Service “in an attempt to arrange suitable mediation between the parties”. The father contends that the Service issued him with a certificate pursuant to s 60I of the Act after the mother refused to negotiate with him.
The father contends that the mother acted unreasonably in commencing these proceedings, on 1 May 2020, in circumstances where her lawyers were not constructively engaging in a dialogue with the solicitor for the father to develop a parenting plan and where the mother had failed to participate with the telephone dispute service.
Counsel for the mother, on the other hand, submitted that:
The father has no capacity to identify, let alone promote, the psychological and emotional needs of [the child]. His attitudes to the responsibilities of parenthood do not embrace the responsibility to ensure that a child has a meaningful relationship with the other parent. The relief he seeks in this interim hearing echoes such attitude.
In that respect, it was contended by the mother and the maternal grandmother that the father has acted in an unreasonable and irresponsible manner in failing to facilitate the child communicating with the mother by linking his consent to the mother communicating with the child to what he perceived to be the mother’s “bad behaviour” and the persistence of her approaches to seek such communication with the child, as well as the mother’s unfavourable responses to the father’s endeavours to resolve financial issues between the parties.
The mother also contends that the father has acted in an unreasonable and irresponsible manner in failing to facilitate the child spending time with her.
As justification for not facilitating the child spending time with the mother, the father refers to the challenging emotional circumstances he confronted after the mother attempted suicide on … April 2019 at the same time as he was attempting to continue working to provide for the family and arrange appropriate care for the child.
As further justification of the father not facilitating the child travelling to Sydney to spend time with the mother, reference was made to difficulty that the father believes the child experienced after the paternal grandparents flew with her from the H Region to Sydney and returned to the H Region on 30 May 2019. It was submitted that there was genuine concern about the welfare of the child who was “incredibly unwell” on her return which necessitated the paternal grandparents stopping a short distance from the airport, at Suburb GG, in order to care for the child who “was beside herself”. It was further submitted that corroboration of that account of the child experiencing difficulty with the flight was the fact that, for the following month, the child’s growth rate slowed from the pre-travel rate, when she had gained a kilogram in that month prior to the situation, to when “she barely put on any weight at all” in the month subsequent to the travel. The concern, it was contended, extended to the child’s perinatal nurse who increased her review of the child’s progress from once per month to once per week. At this stage of the proceedings, no evidence was presented, however, from a treating doctor or clinician to the effect that the travel to Sydney had a detrimental impact upon the child and, if so, the duration of that detrimental impact.
In terms of parental responsibility, it was submitted by the solicitor for the father that the mother’s focus is inappropriately on herself rather than the child’s needs and, in that respect, it was contended that “it’s always about her. It’s always about her needs, what she wants. There is no consideration in relation to the fact that [the child] is living with someone who is caring for her on a daily basis”.
There is clearly considerable resentment between the parties regarding the events that have occurred in the period since December 2018 and, in particular, in the period subsequent to the father relocating the child to Queensland on 27 April 2019. At this interim stage of the proceedings, it is not necessary to make findings in respect to the merits of each of the parties’ respective contentions that the other has acted in an irresponsible manner in respect to the child and in respect to the other party. However, in determining that issue, the Court will, at final hearing, have the benefit of assessing each parties’ evidence in circumstances where they will be cross-examined. The Court will also be assisted by a report from a single expert.
It is, however, clear, that the father moved the child to Queensland on 27 April 2019 despite the strong protest of the mother and the maternal grandmother. It is also clear that the mother has made repeated requests, in the period subsequent to 27 April 2019, for the father to bring the child to Sydney so that the mother could see the child. It is also the case that, at times that it has not occurred, the mother has made repeated requests of the father to facilitate the child communicating with the mother by way of FaceTime and also requesting the father to provide photographs and videos of the child.
The father has, as I have indicated, set out his reasons for failing to comply with the mother’s requests but indicated that, moving forward, he is prepared to facilitate, on an incremental basis, the child establishing a relationship with the mother. This will be, as I have indicated, by way of the child having FaceTime with the mother for approximately 15 minutes three (3) times per week for a period of two (2) to (3) months, followed by an indication, communicated through the solicitor for the father, that the father would be prepared to travel to Sydney every second month to facilitate the child spending some supervised time with the mother for a period of several hours on one (1) Saturday and one (1) Sunday. It is proposed that, after several months of the bi-monthly visits, they would increase to monthly visits.
These interim orders will apply only until the matter is listed for final hearing, which will occur in the first week of September 2020. At this stage of the proceedings, I have not made any findings regarding the parties’ competing assertions regarding the other party’s conduct and submissions that I should find that the other has acted in an irresponsible manner in respect to the child. I am nonetheless satisfied that, in the period between this decision and the final hearing, the father’s proposals, for the child communicating with the mother and potentially spending a limited amount of supervised time with the child on two (2) days on one (1) weekend between the date of this decision and the final hearing, is insufficient to facilitate the child developing a meaningful relationship with the mother in that period.
The father contends, however, that such a graduated approach is justified and necessary in order to avoid an unacceptable risk of the child suffering emotional and/or psychological harm in spending time with the mother. For reasons which I have set out, I am not satisfied that there is an unacceptable risk to the child in the child spending time with the mother, in the circumstances where the child would be spending that time also in the care of the maternal grandmother.
In summary, I am satisfied that it is necessary for the child to spend time with the maternal grandmother who will facilitate the child spending time with the mother, in order for the child to recommence establishing a meaningful relationship with the mother. Given the child’s infancy, that time should commence as soon as possible.
The question of what orders are necessary to establish appropriate parenting arrangements in the period subsequent to the final hearing will clearly be a matter that will be considered in detail at the final hearing. The consideration of that broader issue, in that final hearing, will involve the Court making an assessment of the parties’ competing assertions in respect to the manner in which the parties have conducted themselves to date, with a view to the Court determining whether the parties will, in the future, be likely to facilitate the child having a meaningful relationship with both parents in the context of ensuring the orders are in the best interests of the child and having regard to any issues of risk and the other considerations set out in s 60CC(3) of the Act.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) of the Act requires the Court to consider any family violence involving the child or a member of their family.
At paragraphs 34 through to 64 of her Affidavit, the mother sets out her allegations of the father engaging in coercive and controlling conduct, including using abusive language towards her. The mother’s allegations extended to asserting that the paternal grandfather also used offensive language towards her.
The mother’s allegations are denied by the father.
Conversely, the father contends that the mother has engaged in conduct that amounts to coercion and harassment of him and his parents. That conduct, the father contends, is in the form of electronic communication sent by the mother to the father as well as phone calls that she has made to him.
The mother contends that those communications reflect her distress at not being able to see her child and, at times, denied by the father, to communicate with her child and to receive information and photographs concerning the child.
In these interim proceedings, it is not possible to make a determination of such controversial facts in circumstances where they are disputed. Clearly, the parties’ respective contentions regarding the conduct of the other will be significant matters to consider at the final hearing.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) of the Act requires the Court to consider any family violence order that applies or has applied involving the child or a member of their family and, if applicable, taking into account a number of stated matters.
On 21 January 2020, the father applied for a Protection Order against the mother at the Suburb LL Magistrates Court in Queensland. The substance of that Application was the father’s assertions that the mother was harassing him and that she was economically abusing him by not contributing to the expenses of jointly owned property.
The father’s Application was struck out at the first return date on 5 February 2020.
Effect of change
Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parties, any other child or other person (including any grandparent or other relative) with whom the child has been living.
The child has been living in Queensland with the father and the paternal grandparents since 27 April 2019. It is not, however, clear as to the extent to which the father has been living with his parents during that period and what period he has been working in Sydney. Nevertheless, the Court accepts that the interim orders requiring the child to be relocated to Sydney would result in a significant change for the child. The extent of that change will substantially depend upon whether the father and/or paternal grandparents decide to accompany the child to Sydney and to stay in Sydney in the period between the date of these interim orders and the final hearing. They have the capacity to do so, if they so choose, in circumstances where the parties still own the former matrimonial home, being the Suburb C Unit.
Practical difficulty of implementation
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with their parents and whether that will substantially affect the child’s right to maintain personal relations and direct contact with the parties on a regular basis.
In circumstances where the paternal grandparents live in Queensland and the father asserts that he similarly now resides in Queensland, there would clearly be practical difficulties in terms of transport if the father does not, himself, move with the child to Sydney in the period between the date of these orders and the final hearing. There would be similar practical difficulties in the paternal grandparents spending time with the child, in the event that they determine not to relocate with the child to Sydney in the period between the date of these orders and the final hearing.
The Court is aware of the public health concerns regarding possible exposure of the parties, the paternal grandparents and the child to the COVID-19 virus which, despite considerable mitigation by combined government public safety measures, still exists as a potential risk to all persons who reside in Australia. On that basis, it may well be decided that the preferable course of action is for the child to be brought to Sydney by motor vehicle rather than aircraft. Travel by road rather than aircraft would make it easier to practice social distancing. Accordingly, as a result of that potential concern, rather than providing for the obligation of travel, pursuant to the orders that I make, to be activated in a period of seven (7) days, I will extend the date for compliance to a period of 10 days to enable that travel to occur by road rather than aircraft.
Avoiding further proceedings
Section 60CC(3)(l) of the Act requires the Court to consider 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.
These are interim proceedings and it is important that parenting arrangements, including the prospect of the mother relocating, are further examined in light of expert evidence.
Other relevant matters
Section 60CC(3)(m) of the Act requires the Court to consider any other facts or circumstances the Court considers relevant.
In Attwill & Marden [2018] FCCA 1401 at [90]-[95], Judge Brown said:
90. Two of the principles underpinning Part VII of the Act [section 60B(2) encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
91. For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
92. This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
93. The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children.[4] For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
94. In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
95. The comments, of Warnick J referred to, were as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
(Citations omitted)
[4]See AMS & AIF (1999) FLC 92,852
In this case, the father moved with the child from Sydney to the H Region in April 2019. At that time, the mother was in hospital after suffering the catastrophic injury to which I have referred. She remained in hospital or rehabilitation until 30 March 2020. It could not, therefore, be said that the child’s relocation is an event of recent development. Nonetheless, the action of the mother or, more relevantly, the inaction by the mother in refraining from commencing these interim proceedings needs to be seen in that context. As noted, both the mother and the maternal grandmother strongly objected to the child being relocated and, during the period that the child has been in Queensland, the mother has made repeated calls to be able to communicate with the child and for the child to be returned to Sydney.
The father contends that, in making those requests, the mother has been focussed on her own interests rather than those of the child. In that respect, he contends that the child is well cared for in Queensland by both himself and the paternal grandmother.
Despite the absence of information regarding the day to day care regime for the child and the part that the father plays in providing that care, the fact remains that the child had not spent time with the mother since a brief visit in May 2019. The mother has been unable and remains unable to travel to Brisbane because of her profound disability. The mother’s requests to communicate with the child have, at times, been subject to veto by the father. The mother has not communicated with the child since 12 February 2020.
This is in the context where the absence of a relationship between the mother and child are material considerations in determining what final orders are in the child’s best interests. Those final orders will potentially have a profound effect on the child’s future development and life more generally.
In Morgan (supra) at 81,865, Boland J stated:
Whilst such a move may [being a relocation by one parent], after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
In this matter, after considering all the evidence and detailed submissions of the parties at final hearing, the Court may determine that it is in the best interests of the child for the child to live in Queensland to be cared for by the father and the paternal grandmother. Such a determination would occur after considering and applying a number of principles which were succinctly summarised by Boland J in Morgan (supra) as follows:
·The best interests of the child are the paramount but not sole consideration;
·The applicant is not required to demonstrate “compelling reasons” for the proposed relocation;
·A court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act, and may, subject to procedural fairness considerations, formulate its own proposals in the best interest of the child;
·The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue of where the child should live, the relocation issue not standing as a separate issue;
·That the objects and principles in s 60B of the Act (as it then was) informed or guided a court in applying the criteria relevant to “best interests” (then determined having regard to s 68F (2) factors); and
·A court will take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
Her Honour, in Morgan (supra) at [61], noted that, before the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), in circumstances where a parent unilaterally relocated with a child prior to final hearing, cases tended to be determined on the basis of retaining the status quo. That is the cases “focussed on maintaining stability for a child pending a final hearing on the basis of the well known principles in Cowling and Cowling (1998) FLC 92-801; (1998) 22 Fam LR 776 (see, for example, C v S [1998] FamCA 66; D and H [1998] FamCA 1487; T and T and Child Representative [2000] FamCA 1812; G and G [2003] FamCA 478; B and L [2003] FamCA 1512 and T and J [2006] FamCA 145)”.
However, as further noted by Boland J in Morgan (supra) at 81,871:
In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act [being the Family Law Amendment (Shared Parental Responsibility) Act 2006], particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change “which required reconsideration of that paragraph.
The following passages from Goode (supra) at 80,901-80,902, as referred to by her Honour, were as follows:
71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
The changes to the objects referred to by the Full Court in Goode (supra) included the following amendment to s 60B of the Act, which now provides:
(1) The objects of this Part 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 these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right 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).
[Emphasis added]
In this matter, clearly, stability for the child is a significant consideration. Against that consideration is the fact that maintaining that stability, at least to the extent of maintaining the child’s current place of residence in the H Region, would substantially fetter the Court’s ability to effectively consider all potentially relevant matters that the Court is required to consider in making orders that are in the best interests of the child. This is because the mother’s injuries prevent her travelling and, in those circumstances, she does not have the opportunity of establishing a meaningful relationship with the child. In that respect, the scales would be tilted very much to her disadvantage in the Court’s consideration of the matters set out in ss 60CC(2)(a) of the Act and the considerations set out in ss 60CC(3)(b), (c), and (f) of the Act.
Further, in considering the question as to whether or not the Court should maintain the status quo, there is no evidence that, aside from familial relationships, the child’s current geographic location has particular significance to the child in the sense that, at 15 months of age, the child is not at an age where her education or engagement in extra-curricular activities would be affected.
The potential disruption of the relationships that the child has established with the father and the paternal grandparents are clearly highly relevant considerations. However, in the relatively short period of time before this matter being listed for final hearing in the first week of September 2020, there is no reason presented to the Court as to why the father and, if desired, the paternal grandparents cannot travel to Sydney thereby enabling the child to continue to live with the father while spending time with the mother at those times that the child is in the care of the maternal grandmother.
This will create a far more satisfactory situation where the Court is in a positon to obtain better evidence, based on the child’s actual experience in spending time with all parties, for the Court to properly consider those matters the Court is required to consider pursuant to s 60CC of the Act.
Orders
Accordingly, for the reasons which I have set out and, in particular, having regard to the importance of the child establishing a meaningful relationship with both of her parents including her mother who, as a result of her disabilities, is unable to travel to Queensland and in the absence of evidence that satisfies the Court that the child would be exposed to an unacceptable risk in spending time with the mother in the company of the maternal grandmother, I am satisfied that it is appropriate and in the child’s best interests to make the orders sought by the maternal grandmother. In making those orders, I confirm that the Court has not determined what final orders are appropriate and in the best interests of the child. That can only occur after detailed consideration of the totality of evidence submitted by the parties and a single expert. For reasons which I have set out, the Court’s consideration of that evidence in the context of the legislative requirement, to consider those matters set out in s 60CC of the Act, will be assisted by the child spending time with her maternal grandmother and mother in the period prior to the hearing.
In order to facilitate the child coming to Sydney, while minimising the potential disruption to the child, I will make orders in terms of the alternative form of live with and spend time orders proposed by the maternal grandmother.
For reasons which I have set out, I will not, in these interim proceedings, make an order in respect to parental responsibility.
Given the child’s infancy, I am not satisfied that there is utility in making an order for the appointment of an Independent Children’s Lawyer.
I was not addressed by the parties in respect to the restraints sought in the Application by the maternal grandmother. In those circumstances, it would be preferable for those issues to be canvassed at final hearing.
Trial directions
On 15 May 2020, when the matter was last listed before me for a defended interim hearing, I made a series of directions, including for the parties to make brief submissions in respect to the appointment of a Chapter 15 Single Expert. Both parties have since provided those submissions in accordance with the prescribed timetable.
The submissions of the father contend that the Court should appoint Ms HH as the Single Expert. The reasons for that proposal are primarily related to the fact that Ms HH is based in the H Region in Queensland, being the location where the father and paternal grandparents currently reside with the child. It was recognised that the mother is unable to travel to Queensland to be interviewed by Ms HH. It was stated, however, that enquiries have been made of Ms HH who is prepared to travel to Sydney to interview the mother and maternal grandmother. It was further noted that the fees proposed by Ms HH were the sum of $4,950, being less than the amount which would be charged by the Single Expert proposed by the Second Respondent, the maternal grandmother. It was also stated that Ms HH would be in a position to interview the parties and provide her report in time for the hearing listed for the first week of September 2020.
Senior counsel for the maternal grandmother, on the other hand, proposed, with the consent of the mother, that the Court should appoint Dr G as the Single Expert, who is based in Sydney. It was simply stated that Dr G is in a position to interview the parties and provide her report in time for the hearing listed in the first week of September 2020. It was further stated that Dr G is available for cross-examination at the date proposed for the hearing, being the week commencing Monday, 31 August 2020. It was stated, in the written submissions, that the fees proposed to be charged by Dr G are $7,700.
Having regard to the information provided by the parties, I am satisfied that each of the experts proposed are appropriately qualified. In circumstances where the interim orders that I make in these proceedings are for the child to be returned to live in Sydney, in the period between the date of these Orders and the final hearing, with the prospect of the father and possibly the paternal grandparents travelling with the child to Sydney, I am of the view that it is preferable for a Sydney-based Single Expert to be appointed. On that basis, I will make an order appointing Dr G.
In making that Order, I note that Dr G’s fees are higher than those proposed by Ms HH, however, as against those fees, the solicitor for the father proposed that it would be necessary for Ms HH to travel to and from Sydney in order to conduct interviews with the mother and maternal grandmother. Such travel would also be necessary for Ms HH to give evidence in a final hearing, if that can be facilitated as a face-to-face hearing, in the first week in September 2020. Accordingly, it is unlikely that there would be a substantial cost difference between the fees charged by Dr G and Ms HH.
It will also be necessary for further trial directions to be made, including setting a timetable for the parties to file and serve evidentiary material for the hearing. Accordingly, I have also made an order listing this matter for further directions on 25 June 2020.
I certify that the preceding two hundred and fifty-six (256) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 26 May 2020.
Associate: .
Date: 26 May 2020
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