LISKE & AINSCOMB

[2012] FamCA 737

FAMILY COURT OF AUSTRALIA

LISKE & AINSCOMB [2012] FamCA 737

FAMILY LAW - CHILDREN – Best interests of  a child – Where there are competing applications for interim parenting orders – Where the child is three months old –  Where the parties live in different states – Where the father unilaterally removed the child out of the state where the mother resides – Where there is poor communication between the parties – Where father sought regular overnight time with the child - Where orders are made that the child live with the mother and spend supervised time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Liske

RESPONDENT: Mr Aincsomb

FILE NUMBER: SYC 4337 of 2012

DATE DELIVERED: 31 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 27 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Holding Redlich

Orders by consent

1. That pursuant to Division 15.5.2 of the Family Law Rules 2004 a Single Expert Witness (“Expert”) be appointed to enquire into and report upon matters relating to the welfare of the child C, born … April 2012 and that in preparing the report to the Court, the Expert be requested to consider the following matters:

   (a)Whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

   (b)The relationship between the child and with each of her parents and any other relevant person, including any other significant person in each of the parents’ households;

   (c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;

   (d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the parents, or any other person with whom the child has been living;

   (e)The capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs;

   (f)The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child's parents (and any other relevant person);

   (g)The effect on the child of any family violence to which they may have been exposed;

   (h)The effect on the child if spending equal time, or substantial and significant time with each parent, having regard to the parent’s current and future capacity to:

   (i)Implement such arrangement;

   (ii)Communicate with each other and resolve difficulties that may arise;

   (i)The effect on the child of having a graduated parenting regime, whereby the child spends more time with the father in successive increments over time;

   (j)The mental state of both of the parties and any other relevant person, including any other significant person in each of the parents' households in so far as it relates to parenting issues.

   (k)Any mental health/special needs of the child;

   (l)Any other matter the Expert considers relevant.

2. That the parties shall facilitate the preparation of the report pursuant to Order 1 including attending on and arranging for the child to attend upon the Expert, and the parties shall ensure that any other significant person of their household or their respective families attend upon the Expert if requested by the Expert to do so.

3. That for the purposes of appointing the Expert pursuant to Order 1, the Respondent father shall by 20 August 2012 provide the names of three potential experts, including details as to their availability and costs, to the mother’s solicitors and within a further 7 days the mother shall select one of the three names and such expert shall be the Expert appointed pursuant to Order 1.

4. That the Respondent father be responsible for and pay the costs of the appointment of the Expert pursuant to Order 1 in the first instance and meet and pay all such costs as and when they fall due.

PENDING FURTHER ORDER

IT IS ORDERED

1. That Orders 5, 6 and 7 made by this Court on 24 July 2012 continue.

2. That the child C born … April 2012 shall live with the mother.

3. That the child shall spend time with the father as follows:

   (a)       each Monday, Tuesday and Saturday from 1.00 pm to 5.00 pm; and

   (b)       at such other times as the parties may agree in writing.

4. That the father’s time with the child be facilitated by an employee of “[Child Care Agency F]” who shall collect and return the child from the mother’s home and be substantially present whilst the child is in the father’s care.

5. It is a condition of the father spending time with the child that he pays all expenses in relation to the services provided by “[Child Care Agency F]”.

6. That the father is restrained from attending the mother’s home for changeover.

7. That the father is restrained from bringing his wife, Ms S (known as …) into contact with the child, which includes being present in the premises with the child.

8. During times that the child is spending time with the father the mother shall provide to the supervisor a bottle of expressed breast milk.

9. In the event that the child becomes ill or distressed and cannot be settled during her time with the father, he shall arrange for the child to be returned to the mother.

10. All outstanding subpoenae are adjourned to 10.30 am on 15 August 2012.

11. The listing scheduled before a Registrar on 3 September 2012 is vacated.    

12. Liberty to the parties to apply on twenty four (24) hours notice.

13. That the parties otherwise have liberty to relist the mother’s application for interim orders and the father’s response for interim orders upon release of the single expert’s report, the date for relisting to be fixed by the Court.

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4337 of 2012

Ms Liske

Applicant

And

Mr Ainscomb

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. Before the Court are competing applications for interim parenting orders in relation to C (“the baby”) born in April 2012.  The baby’s mother, Ms Liske (“the mother”) initiated parenting proceedings on 23 July 2012, the catalyst for which was the surreptitious removal by Mr Ainscomb (“the father”), of the baby on 20 July 2012.  He took the baby to Melbourne where he lives.  Interim orders have now been made by reason of which the baby has been returned to the mother and pending further order will reside with her. 

3. The parties are agreed that a single expert psychiatrist is to be appointed to investigate and report on matters relevant to the baby’s living arrangements.  There are issues about the amount of time and circumstances under which the baby will spend time with the father during the interregnum.  While the parties agree that the baby should spend time with the father no less than thrice weekly, they disagree about whether supervision is warranted, duration and whether the father should be restrained from having his wife involved in his time with their daughter.  Although one cannot be certain, it would seem likely that these orders will endure for about three months. 

4. As was made clear to the parties during the hearing the Court is not constrained by their proposals and it is appropriate to record that I raised the possibility that I might contemplate that the baby has less time with the father than is proposed by the mother. 

Background Facts

1. The history of the parties’ relationship is not entirely clear.  It is sufficient to observe that both separated from their respective spouses, following which there was a tumultuous and brief period of cohabitation in Sydney (where the mother lives).  After numerous separations and reconciliations, after the mother fell pregnant the father ended their relationship and returned to live with his wife in Melbourne.  So that it is clear, the parties’ relationship was over well before the birth of their daughter. 

2. As will be discussed later, there is no doubt that the mother was very distressed about the father’s decision to firmly end their relationship, following which she threatened to end her and the unborn child’s lives.  Two particularly serious incidents stand out.  The first occurred in May 2011 (before the mother was pregnant) and followed a physical altercation at her home, in relation to which the father telephoned Police.  The mother was taken into police custody and charged with assault (of the father) and admitted to Hospital V where she remained, it would seem, overnight.  The mother was seen by a psychiatrist and released upon the basis that she “was assessed as medically well, with no suicidal risk, psychotic or other acute psychiatric concerns” (Exhibit “D”).

3. The second incident occurred in October 2011.  On this occasion the mother went to a Sydney hotel that had a romantic connection for her to the father.  She drank a large quantity of alcohol and in long telephone conversations with the father, which he recorded, she threatened to end her and the unborn child’s life.  In those calls she also made numerous statements which disavowed that she would do so.  The father was understandably very anxious about the situation and contacted police.  He was in Melbourne.  Police came to the hotel where they found the mother asleep induced, it would appear, by the quantity of alcohol she consumed.  Police apprehended the mother who was admitted as an involuntary patient to Hospital V where she remained overnight. 

4. The hospital records are in evidence (Exhibit “D”).  The summary contained in the Discharge Summary (which gives background to the mother’s admission and the hospital’s views about her condition when she was discharged) is as follows:

   [Brought in by ambulance] [with] suicidal ideation, currently 18/40 [pregnant] P1G0 on background of multiple relationship breakdowns.

5. There is then the notation “HoPC”. It would seem that this is the history taken from the mother.  The document continues:

   Planned suicide attempt: checked into hotel where she met her partner who is the father of her current pregnancy and had earlier written a will and email to friend.  Consumed 1-2 bottles of wine to dull pain so she could cut her wrists with a back-up plan of jumping over balcony.  Patient states that she could not go through with self harm and fell asleep from alcohol.  Was awoken by ambulance officers but is unsure who called them. 

   Background:

   Her parents in [South East Asia] have been pressuring her to have a termination of pregnancy which she does not agree with.  She states that she did [sic] want her child to ‘go alone’ in to death so wanted to ‘go with her’.  She had a difficult relationship with her mother and her aunt described problems with bonding. 

   Currently separated from husband ([…]) and awaiting divorce.  She had begun a new relationship with [the father] who has gotten her pregnant.  She recently discovered that [the father] was still in a relationship with his ex-wife.  [The father] had recently sent her a text message bragging that he was about to have sex with his wife to taunt her, which she feels has partly triggered this crisis.  She has been in couple’s counselling with [the father] where he revealed he had been tracking/spying on her and was accusing her of having fictitious affairs.

   Summary of care and outcomes: 

   [The mother] worked with the nurses in PECC regarding her goals.  Her partner [the father] flew down from Melbourne and this seemed to calm her down.  He promised to be more supportive of her and denied he would try to get the child off her which was apparently a source of stress.  Collateral history from the aunt revealed a history of behavioural problems with tantrums as a child.  She was described as a manipulative and impulsive person who was obsessed with continuing the relationship with [the father].  The relationship with [the father] was described as tumultuous with almost daily arguments.  There were no signs of depression observed on the ward.  At the time of discharge she had no suicidal thoughts/plans. 

6. From the Discharge Summary under the heading “Psychiatric diagnosis” there are two entries, the first being “[a]djustment disorder”; the second being “[c]luster B traits”.  So that it is clear, there is no conclusion to the effect that the mother has a major psychiatric disorder.  She was referred for follow-up by Peri-natal Psychiatry at Hospital P and it seemed that community services were invited to monitor her. 

7. Following the mother’s discharge she obtained a referral from her GP to a psychologist, Ms D. Her notes are in evidence in relation to which the following remarks are notable (Exhibit “C”).  In relation to the mother’s presenting concerns Ms D said:

   The key issues presented by [the mother] during the counselling process include:

   ·Anxiety in relation to her future and their child’s future, particularly how she will manage financially given that she had resigned from work during early pregnancy.  She reported that [the father] convinced her to resign, given that it would be too stressful while she was pregnant, and assured her that he would support her financially during this time and subsequent to the birth of their baby.

   ·[The mother] reported difficulties with gaining financial support from [the father] and arguments in this regard. 

   ·Grief response in relation to the end of her relationship with the father; and

   ·Interpersonal and communication difficulties in managing her relationship with [the father], particularly with [the father’s] mistrust of [the mother] and constant accusations that she “was having an affair”.  (Psychologist’s Report, 26 July 2012, p 3) [footnote omitted]

8. The psychologist goes on to note under the heading “Response to treatment”:

   Significant rapport has been established between [the mother] and the therapist.  She has responded positively to the intervention and expressed her thoughts and feelings freely throughout the intervention.  Her attendance has been consistent and prompt. 

   [The mother] presented to counselling with a request to be assisted to develop personal and emotional insight in order to positively move into motherhood and to establish a positive co-parenting relationship with [the father]. 

   [The mother’s] narrative and related affect appeared sincere.  She reported a commitment to motherhood and love for their child.  (Psychologist’s Report, 26 July 2012, p 4)

9. Finally:

   On 7 April 2012, a telephone consultation from the hospital was conducted, wherein she was distressed as [the father] did not wish for [the baby] to have his surname.  She reported having argued with him in relation to this concern.  Supportive counselling was conducted at this time. 

   A face to face session was conducted at [the mother’s] home on 1 June 2012.  At this time, her psychological state appeared stable.  She appeared to be loving towards their child.  She did however report Anxiety in relation to [the father] taking [the baby] away from her.  Psychosocial education was conducted in relation to self care, domestic violence and contacting the relevant authorities. (Psychologist’s Report, 26 July 2012, p 6)

10. From the latter it is apparent that as recently as 1 June 2012 the mother was in a constructive relationship with a psychologist who assessed her as being well but who also would benefit from further supportive therapy.  In this regard the psychologist reported:

    … it was suggested that [the mother] consult with her General Practitioner to obtain a referral for a further six sessions under the “Better Outcomes for Mental Health Program”.  (Psychologist’s Report, 26 July 2012, p 6)

11. In those and the Hospital V notes there is repeated reference made by the mother to her concern about her ability to deal with the father and what she views as his intimidating, violent and controlling behaviour.  Although the father denies the mother’s accusations these records demonstrate that there can be no suggestion of recent invention by her.  In other words, these concerns were raised by the mother well before this litigation.  It is clear from these notes that it is plain that unless the mother’s dealings with the father are carefully managed and contained there is a risk of significant stress to her.  Given the baby’s age and reliance upon the mother, this is something this is an important matter and weighs heavily in favour of relief of the type sought by her. 

12. Returning to the chronology, the mother obtained a referral from her general practitioner and was due to resume therapy with Ms D last week.  Orders have been made for this to occur and it is to the father’s credit that he has agreed that once the six free further sessions are finished he will meet the mother’s costs so that she can continue to see Ms D. 

13. Moving forward to the baby’s birth, the father was present and involved in the baby’s care following discharge.  By the time the baby was born, it would seem that the situation between the parties had calmed down, and they were able to work cooperatively to achieve their stated aim of both being actively involved in their new baby’s life.  Indeed, the father stayed overnight at the mother’s home for the periods referred to in his affidavit. 

14. By May 2012, however, tensions were again apparent. 

15. There is a factual dispute about whether the mother denied the father contact with the baby for five weeks.  This is an issue that I am unable to resolve, and the probabilities do not assist me in forming a view one way or the other as to the likelihood of whether that occurred.  In any event, the parties attended mediation and relationship counselling, with no agreement about the future, including the amount of time the father would spend with the baby. 

16. By June 2012, the father was again spending regular time with the baby, generally in Sydney for a few days each week.  Given that he lives in Melbourne with his wife and travels extensively, that he was able to do this reflects real effort and his obvious commitment to a meaningful relationship with his daughter.

17. Two weeks ago, the mother and baby became unwell.  The details of their illnesses are recorded in the notes produced by Hospital P and are unrelated to the mother’s mental health.  Both the mother and baby developed skin conditions which concerned their treating specialist, Dr U.  As chance would have it, they were due to see Dr U for a follow-up appointment on 20 July 2012.  This was a Friday, and it had been previously arranged that the father and his mother would come to Sydney and spend the day with the baby.

18. The mother and baby attended the scheduled appointment and by arrangement, the father’s mother collected the baby from her at the surgery.  The mother provided the father’s mother with spare house keys, and the father’s mother took the baby back to the mother’s home.  The mother provided nappies and a supply of previously expressed milk.  It is a matter of some significance that the baby was and continues to be breastfed.  The arrangement was that the father would meet his mother and collect the baby at the mother’s home, and that the baby would be returned to the mother no later than 9.00 pm that evening. 

1. As planned, the mother attended a social commitment.  During the afternoon, her legs became inflamed and painful.  As is apparent from the hospital notes, the mother has had serious, what is described as chronic, pain associated with her skin condition.  She spoke to her specialist, who advised her to attend Emergency Outpatients for pathology and observation.  The hospital notes indicate that the specialist was concerned that the mother may have had a meningococcal infection.

2. In the event, having been sent home, at about 9.00 pm the mother returned to hospital, where she remained overnight until about 10.00 am the next day.  For a time on the Friday evening, the father, his mother and the baby remained with her.  Whilst at the hospital, the mother fed the baby.  It was then agreed that the father, his mother and the baby would return to the father’s hotel.  With this possibility in mind, the mother had prepacked a bag for the baby and expressed milk.  This was to be the first night that the baby was away from her overnight.  So that it is clear, this was an arrangement made against a background of the mother needing to be at hospital.  It was nothing like the commencement of a routine of overnight time.  During the night, the mother sent the father a text message in which she asked if he and his mother would stay the Saturday night; her point being that if she needed assistance with the baby, they would be on-hand. 

3. The mother came home from hospital on Saturday morning, and as arranged, the father and his mother returned with the baby at about 1.00 pm.  The mother fed the baby, and agreed with the father that he could take her out again.  It was agreed that the baby would be returned at about 6.00 pm.  Before the father left, he and his mother suggested that they take the baby to Melbourne for a couple of days.  The mother declined.  She pointed out that the baby had never been away from her for that long, and she would not be able to express enough breast milk.  She attempted to reassure them that she was physically well enough to attend to the baby, and if she needed help, she had friends upon whom she could call. 

4. As it transpired, without the mother’s consent, the father and his mother took the baby to Melbourne.  At about 10.00 pm on Saturday evening, he sent the mother a text message to this effect.  In addition, he said:

   I will bring her back in a few days when you have seen your doctor, you’re feeling better and if there are any health issues that your doctor says you may need support with, we can work it out then, so take care of yourself.  [the baby] is fine, feel better rest up talk tomorrow, we can look after her fine. (mother’s affidavit, par 19)

5. Immediately, the mother telephoned the father but was unable to reach him.  She sent several text messages asking him to return the baby which he refused.  She telephoned local police, who attended her home and without success attempted to speak with the father.  Police returned on the Sunday morning, and on this occasion when they called the father answered the telephone.  The father correctly informed police that he had spoken to a New South Wales Department of Community Services officer on Saturday afternoon or evening.  According to the father’s evidence:

   The person I spoke to told me that I had a duty of care to protect my child if I thought she was at risk of harm or was not being properly cared for.  (father’s affidavit, par 34)

6. There is nothing in the statement attributed to the officer to the effect that the father should take the baby from the mother.  It is the father’s evidence:

   … I told the police officer of the circumstances surrounding my decision to care for [the baby] and that I intended to return [the baby] to [the mother] when [the mother] had recovered, which I hoped would be by Wednesday 25 July 2012.  (father’s affidavit, par 36)

7. Thus, although the father had a few weeks earlier instructed his solicitors to prepare an application for parenting orders to have the baby in his primary care, he told police, and by implication, the Court, that he retained her because the mother was not physically well enough to care for her.  If this is correct, it would appear he took the baby to Melbourne because it was convenient.  No consideration appears to have been given to remaining in Sydney to be able to assist the mother and to have the baby and mother together to the extent that this was possible.  Of course, had he remained in Sydney, the stress placed on the mother would have been avoided, and the baby’s breastfeeding would not have been disrupted.

8. As will become apparent, there is considerable weight placed on the father’s decision to act in the way he did in relation to the baby.  Further steps taken by the mother to secure the baby’s voluntary return were unsuccessful, and thus, on Monday, 23 July 2012, she commenced these proceedings.  Short notice was granted and the matter was listed for interim hearing at 2.15 pm on 24 July 2012. 

9. The mother’s application came before me on 24 July 2012.  On that occasion, both parties were represented and the father was given leave to rely on a response and his affidavit completed that day.  By way of interim order, he proposed that the baby remain with him and spend time with the mother from 10.00 am to 5.00 pm each Saturday and Sunday in Melbourne, supervised by a person from an agency called “Aiding and Caring”.  The father said he would meet the mother’s costs associated with spending time with the baby, as well as those due to the supervising agency.  If the mother was able to be in Melbourne on other days, he proposed that she spend time with the baby “any other day”, provided she gave 24 hours notice.

10. I pause to observe that the father put forward a suite of proposals which necessarily involved considerable expense.  Although his financial circumstances are not in evidence, I infer from the evidence that is provided, as well as the expense which, by reference to his response, he was willing and able to incur, that he has reasonably significant financial means.  In any event, the father’s proposal for the baby’s time with the mother was to dovetail with her attending “upon a Court appointed Psychiatrist for treatment for a period of not less than 6 months for the purpose of assessing the Mother’s psychiatric health and whether or not she is able to safely care for [the baby]”.

11. In the event that he was unsuccessful in his primary application that the baby live with him, the father proposed that “[the baby] shall spend time with and communicate with the Father from 9 am Friday until 9 am Monday each week”. 

12. So that it is clear, in relation to his three-month old daughter, the father’s alternate proposal was that the baby’s time be divided between her parents, four nights to the mother and three nights to him each week.  It is a proposal that bespeaks a breathtaking lack of understanding (perhaps regard) for the needs of a baby.  As it turns out, that the father was willing to present that application for the Court’s consideration lends considerable support to the mother’s claims about his controlling behaviour, his dealings with her about the baby, and determination to have his own way.  It raises very serious questions about the father’s level of understanding of his daughter’s needs and his willingness to place her interests ahead of his own.  These are findings which, for this hearing, have considerable weight.  The fact that the father, at the resumed hearing last Friday, moderated his approach so that he presented an application that he have overnight time with the baby one night a week, as well as the days mentioned in his proposed minute of order, (Exhibit “B”) does not moderate my view about the significance of the application he presented only a couple of days earlier. 

13. I have little doubt that it will be to the baby’s benefit if the father obtains advice from a health professional about her needs and guidance in relation to effective and cooperative parenting.  Just as he considers it important for the mother to attend a psychologist, he should contemplate doing the same. 

14. In support of the orders sought in his Response, the father gave evidence about his personal circumstances.  He is a director of companies that trade in natural resources.  Two and a half years ago, he married Ms S who he now employs.  It is the father’s evidence that he travels frequently both interstate and internationally.  However, because he is self-employed, he is flexible in relation to his travel commitments. 

15. As I have said, there is no doubt that following the baby’s birth, he made real efforts to be with the mother and their daughter and on most weeks spent time with them in Sydney.  According to the father, his wife is naturally maternal and in circumstances where they have been unable to conceive, they have recently decided to commence IVF treatment.  He has set up a bedroom in his Melbourne home for the baby and deposes to his wife’s support of his primary application that the baby lives with them.  It is his evidence that “[Ms S] is willing and able to care for [the baby] during the times that I will be required to travel”.  Nonetheless, he says he appreciates he will need to reduce his work commitments if the baby lives with him. 

16. This then brings us to the key considerations which drive the outcome about what parenting orders are in the baby’s best interests pending further hearing.  That hearing, of course, will be informed by the opinion expressed by the psychiatrist who the father has requested investigate the baby’s circumstances. 

17. There is no doubt that since at least May 2011, the mother has been distressed in her relationship with the father and anxious and worried about what she perceives is his attitude towards her.  With the impending birth of their baby, these stresses escalated to such a degree that she required support from a psychologist.  Whilst the psychologist sees the mother as having coped, her notes are replete with references to the mother’s concerns about what she sees as the father’s controlling and manipulative behaviour and anxiety that he would take the baby from her.  Of course, in this latter regard, she was prescient as this is exactly what he did.  From the psychologist’s notes and in the arrangements made for the baby to spend time with the father following the baby’s birth, the mother has reasonably consistently maintained a commitment to the baby having a relationship with the father.  It is notable in this regard that she was distressed by what she perceived to be his initial reluctance to bestow his surname on their daughter. 

18. It is at the father’s behest that an order will be made for the parties to attend a psychiatrist to assess their mental health and capacity to care of the baby.  Although he will participate in the process, the gravamen of his case is that it is the mother’s mental health which is in issue and that her mental health is such that the baby should live with him.  It is accepted that the father has established that at least from May 2011 the mother has experienced periods of emotional and psychiatric distress and needed psychological support. 

19. At this stage, the evidence suggests that the reason the mother required psychological support was to cope with the stresses of dealing with the father and their relationship issues.  In circumstances where the baby is so young and is breastfed, it is agreed that the baby will live with her during the interregnum, the Court should not take steps which would exacerbate the mother’s stress.  This is because the mother’s emotional and psychiatric wellbeing is intrinsically linked with the baby’s wellbeing.  Whilst the mother has friends who offer support and are on affidavit, she does not have family in Sydney.  The types of deep familial or personal relationships which she might otherwise call upon to help her as a new mother and in her relationship with the father are not immediately to hand.  There is no doubt that on a reading of the affidavits filed by the mother that her trust in her own judgment in relation to the father as well as in him has been shattered.  He has quite simply caused her to face her greatest fear.  Namely, that he would take the baby away.  It is not unreasonable for her to be afraid he may do so again.  In this regard, greater weight is given to the fact that he did this only two weeks ago than to him complying with the order to return the baby and his concession during that the interregnum that the baby should live with the mother. 

20. The father’s behaviour in taking the baby two weeks ago shows a breathtaking lack of regard for the effect this would have upon the mother’s parenting capacity.  In short, it is far too soon to be confident that he would not, if given the chance, do so again if the mood struck him. 

21. There is little doubt that it is in the baby’s interests for the mother to be as emotionally settled as possible and for the mother and baby to be afforded the opportunity to settle down following the recent events discussed above.  In circumstances where the mother is so anxious and has been identified as requiring ongoing psychological support to deal with the stresses of the last year or so, in particular, in relation to her dealings with the father, there is a strong case made for supervision of the father’s time during the interregnum. 

22. This is the only way that the Court and the mother can be certain he will not attempt to take the baby away again.  Of course, supervision addresses also a number of other matters.  The previously cooperative relationship between the parties established at the time of the baby’s birth presently lies in tatters.  There is no effective communication.  Had there been, the father would have responded to the mother’s numerous calls and requests to return the baby rather than behave in the manner which he did.  Communication cannot be selective; that is, about matters of interest to him but not of concerns held by the mother. 

23. There is no doubt that over those few days when the mother sought the baby’s return, there was a very serious issue between the parents in relation to which the father refused to communicate.  It is noteworthy that the mother was unaware until she read the father’s affidavit filed last week that whilst the baby had been with him, as well as providing her with expressed milk, he had also been giving her formula.  These are significant matters which require good communication between the parties. 

24. At present, a communication book is a poor substitute for the detailed information which needs to pass between the parties when the baby leaves the mother’s care and goes into the father’s care.  If the father’s time is facilitated or supervised by another person, depending on who that is, the communication lacuna can be addressed. 

25. Both parties gave evidence about verbal and physical abuse by the other.  In addition, the mother gave evidence about the father’s drug abuse.  The allegations made by each of them, by and large, are denied or it is suggested that seen in proper context, would not cause concern that this might represent a risk of abuse or exposure to family violence to the baby. 

26. In relation to verbal and physical abuse allegations made by the mother, the events about which she gave evidence predate the babies’ birth.  It follows they predate her allowing the father to stay at her home and facilitating extensive unsupervised time with the baby.  There are references in the hospital notes (at Hospital P and Hospital V’s) that the mother was not concerned for her or the baby’s safety.  Although, at this stage, I have some concern about the mother’s judgment she is an obviously intelligent and articulate professional who has the capacity to analyse the magnitude of the risk to her and the baby of the behaviours described by her in her second affidavit.  It seems unlikely that she would have facilitated the type of contact for the baby with the father and had him in her home to the extent which she did if she considered there was an unacceptable risk to her or the baby’s safety.  I make the same observations in relation to her evidence about the father’s misuse of drugs.  So that it is clear, at this stage, I place greater weight, as counsel for the father said I should, on the mother’s actions after the baby was born than I do in relation to her evidence about his actions before then. 

27. The father also gave evidence about violence by the mother; her verbal abuse of him and threats of harm to herself and the baby.  This must be interpreted in the same way, namely, that no steps were taken by the father to assume the baby’s care prior to him removing her for the few days two weeks ago.  His explanation in his affidavit for removal had nothing to do with issues of violence, abuse or the mother’s mental health.  It was because the mother was physically unwell and facing hospitalisation.

28. I place greater weight on the father’s position from the baby’s birth that she remain in the mother’s care and his agreement that during the interregnum she lives with her without supervision than I do on these allegations. 

29. However, these allegations provide evidence that the presumption of equal shared parental responsibility should not be applied in this interim hearing.  They also provide a strong evidentiary foundation for orders that do not have the parties coming into face to face contact even in the presence of a third person.  Right now is a period of heightened tension and time needs to pass before it would be appropriate and possibly safe for the baby to have her being moved between her parents in their presence.  There is too much evidence of verbal abuse, physical aggression and other troubling behaviour to infer easy and appropriate changeovers are likely to be the norm. 

30. I am of the strong view that the baby needs stability, a calm and settled primary carer, to continue breastfeeding without interruption, and short and regular periods of time with her father but no possibility that what is intended to be a short period of time could expose the baby to a risk of removal.  The father’s time with the baby will take place according to him in hotels and apartments.  Although it is his intention to obtain an apartment, I observe that more recently he spent time with the baby at a hotel.  It does not seem that he is in an immediate position to establish a familiar setting for the baby each time she spends time with him.  I assume this is a matter that will be addressed in the next while.

31. The net effect of this is that I am persuaded the baby should spend time with the father for four hours, three times a week.  The mother proposed from 1.00 pm to 4.00 pm, they being times that coincide with the baby’s routine.  That seems appropriate.  There was some flexibility in the days that this would occur and the mother was accommodating of the father’s suggestion that these occur on Monday and Tuesday otherwise on Saturdays, which will be ordered.  Of course, provision will be made for the baby to spend time with the father at such other times as the parties agree in writing. 

32. There is a surprisingly intense issue about whether the father should be restrained from having his wife included in his time with the baby.  On balance, I have decided that the time is not right for Ms S to be included.  She was complicit in the father’s actions in keeping the baby away from the mother.  There is no evidence that she sought to resolve the situation and to have the baby returned to the mother.  I infer she did not.  There is evidence that late last year at much the same time as the mother threatened suicide that Ms S did as well.  This is apparent from text messages sent by the father which are attached to the mother’s affidavit.  It bespeaks the complexity of the relationships between the three adults in the baby’s life. 

33. The father and Ms S are not long married and, of course, as is apparent for a significant proportion, if not the majority, of their marriage he has been in a relationship with the mother.  Although the father gave evidence that he and Ms S’s marriage is now on a stable footing I would need to know more, perhaps from Ms S, about how she views the situation before I could comfortably accept his optimistic view about the state of his marriage.  The possibility being that as the facts just recounted would suggest there is aura of instability about the father and Ms S’s marriage.  I am far from satisfied that Ms S is likely to be an ongoing significant presence in the baby’s life.  Of course, more will become known about this by the time the matter returns to Court and Ms S herself will have had the opportunity to participate in the psychiatric assessment and provide affidavit evidence.  If, as it transpires, the effect of this is that these concerns fade away it is apparent that if Ms S is an important person in the father’s life she should be involved in the baby’s life. 

1. The point is, however, that I am not so satisfied about the significance of Ms S in the father’s life that she should be included in the baby’s time at this point.  Refusing Ms S the opportunity for involvement at this time will not have a long term effect on the nature of her relationship with the baby. 

2. Refusing orders along the lines proposed by the father for his time with the baby similarly do not have long term ramifications. 

3. In relation to the orders that I will make, the presence of a supervisor is not to provide the level of strict supervision required when there is a grave risk of harm to a baby, but rather to facilitate the baby’s time with the father and be substantially present and thus avoid the risk of him taking the child.  Otherwise to conduct changeovers and communicate matters between the parties relevant to the baby’s welfare. 

4. For these reasons I am satisfied the orders are in the baby’s best interests.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 31 July 2012.

Associate:     

Date:             31 July 2012