READER & PETHERIDGE

[2018] FCCA 515

FEDERAL CIRCUIT COURT OF AUSTRALIA

READER & PETHERIDGE [2018] FCCA 515

Catchwords:
FAMILY LAW – Interim parenting – relocation – 18 month old child – mother unilaterally moved with child from (omitted) Victoria to Sydney NSW – ability to foster a meaningful relationship between child and father if mother remains living in Sydney and father remains living in (omitted) – practicality of move of mother and child back to (omitted) – orders for child to be returned to (omitted).

Legislation:

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

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156

Marvel & Marvel [2010] FamCAFC 101

Sayer & Radcliff & Anor [2012] Fam CAFC 209
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

Applicant: MR READER

Respondent: MS PETHERIDGE

File Number: PAC 110 of 2018

Judgment of: Judge Obradovic

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Parramatta

Delivered on: 5 March 2018

REPRESENTATION

Appearing for the Applicant: Ms Neilsen

Solicitors for the Applicant: Sarah Bevan Family Lawyers

Counsel for the Respondent: Mr Givney

Solicitors for the Respondent: Broun Abrahams Burreket

PENDING FURTHER ORDER

1. The parents shall have equal shared parental responsibility for the child X born 2016.

2. The mother shall within 42 days of the making of these orders cause the return of the child X born (omitted) 2016 to the City of (omitted), Victoria or its immediate vicinity.

3. Following compliance by the mother with the above order, the mother is restrained from changing the place of residence of the child to any place outside the area referred to in Order 1 and the following shall apply:

   (a)The child shall live with the mother;

   (b)The child shall spend time with the father as agreed between the parents in writing, but failing agreement:

   (i)For a period of three months for four hours per day on four days per week, with such times and dates to be nominated by the father no less than seven days in advance by providing to the mother written notice of what days and times the child shall spend with him, noting the father is a shift worker;

   (ii)Thereafter and for a period of six months, for six hours per day on four days per week, with such times and dates to be nominated by the father no less than seven days in advance by providing to the mother written notice of what days and times the child shall spend with him, noting the father is a shift worker; and

   (iii)Thereafter, for two 24 hour periods twice per week, with such times and dates to be nominated by the father no less than seven days in advance by providing to the mother written notice of what days and times the child shall spend with him, noting the father is a shift worker.

4. In the event that the mother fails to comply with order 1 herein, or breaches the restraint in order 2, then the following shall apply:

   (a)The child shall live with the father;

   (b)The child shall spend time with the mother as agreed between the parties in writing, but failing agreement every third weekend in a month from 4pm on Friday to 4pm on Sunday with the mother to collect the child from the father’s residence at the commencement of the time and the father to collect the child from the mother’s residence at the conclusion of the time.

5. Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Dispute Conference at 2pm on 17 April 2018 and:

   (a)The parties shall continue to attend at such times dates and places as the consultant may advise;

   (b)The Family Consultant is requested to provide to the Court (unless in the Consultant’s view it is not appropriate to do so) the parties, a memorandum outlining and reporting on:

   (i)Any agreement reached between the parties;

   (ii)The issues raised by the parties and which will require determination by the Court;

   (iii)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.

6. List the matter for directions at 11.30am on 4 May 2018.

NOTATION:

A.The Court notes the father has agreed to pay to the mother $200 per week for a period of six months to assist with the cost of housing in (omitted).

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

These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 110 of 2018

MR READER

Applicant

And

MS PETHERIDGE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings for the return of the child X born (omitted) 2016 from New South Wales to Victoria. The application is brought by the father after the mother, on 5 January 2018, unilaterally relocated the child’s residence from (omitted) to Sydney, some 1200km or 12 plus hours’ drive away.

Agreed Facts

1. The parties commenced a relationship in (omitted) 2014.

2. In July 2015, the mother relocated from Sydney to (omitted) to live with the father.

3. The parties have one child together, X born on (omitted) 2016.

4. The parents first separated on 2 November 2017, on which day the father signed a document which indicated that he gave consent for the mother and child to move interstate to New South Wales.[1]

   [1] Although the father agrees that he signed this note, he says he did not appreciate its meaning nor did he have any intention of agreeing to the move. He says he understood the mother and child would only be away for 2 weeks.

5. The child did not spend any time with the father between 2 November 2017 and 30 November 2017, when the mother returned to (omitted).

6. On 1 December 2017, the father commenced proceedings in the Magistrates Court of Victoria seeking that pending further order the mother be restrained from leaving the (omitted) area with the child. 

7. On 5 December 2017, the parties entered into consent orders to have equal shared parental responsibility, for the child to live with the mother, for the father to spend time with the child each Monday, Wednesday and Friday between 11am and 2pm and a restraint on the mother from leaving the (omitted) area.

8. The child spent time with the father after the making of the interim orders.

9. The parties reconciled on 17 December 2017.

10. By consent, on 19 December 2017 the proceedings in the Magistrates Court in Victoria were discontinued and the interim orders made on 1 December 2017 were discharged.

11. The parties separated on a final basis on 21 December 2017.

12. The child spent limited time with the father after the final separation. Such time occurred on 22 December 2017, 23 December 2017 and 1 January 2018.

13. On 3 January 2018 an incident occurred at the paternal grandfather’s home, which resulted in the mother being a defendant in an application for an Apprehended Domestic Violence Order (known as an intervention order). An interim order was made on 16 January 2018, and amended on 8 February 2018. The final hearing is listed for 6 March 2018. The interim order prevented the mother from coming or remaining within 100m of the father’s then residence, and it was subsequently amended to 50m of any place where the father lives or works.

14. On 3 January 2018, the father and his mother attended the paternal grandfather’s residence. The father had the child in his arms and the parties were discussing whether the time with the father ought to be supervised, as the mother insisted. An argument occurred and the father went to remove X, as he was doing so there was a struggle between them, resulting in the mother ripping the father’s shirt.[2] The police were called. X was removed by the paternal grandmother before the police arrived, but was returned to the mother at approximately 6pm.

    [2] The parties’ account of the incident is very different, with the mother alleging that the father tried to choke her and the father alleging that the mother punched him in the head with a closed fist

15. The mother then relocated to Sydney with the child on 5 January 2018. This was done without any notification to the father prior to the move.

16. On 10 January 2018, the father commenced proceedings in the Magistrates Court of Victoria for return of the child to (omitted).

17. On 12 January 2018 the mother commenced proceedings in the Federal Circuit Court of Australia, Parramatta Registry. The matter was given a first return date of 16 February 2018.

18. On 16 January 2018, the Magistrates Court proceedings were transferred to the Federal Circuit Court of Australia, to be consolidated with these proceedings.

19. The Court heard the interim applications on 16 February 2018.

20. At the time of the interim hearing, the father had not spent any time with the child since 3 January 2018, being a period of six weeks, which in the life of an 18 month old baby[3] is a significantly long time.

    [3] As X was at the time of interim hearing

Other Relevant Evidence

1. The father’s evidence in summary is that:

   a)He provided care for X in equal measure as the mother during the periods that he was not working;

   b)During the first six months of the child’s life he was heavily involved in the child’s care, including bathing the baby, settling the baby every night, being responsible for the majority of the night feeds and nappy changes overnight. This was a period of time when the father was working during the day and was usually home at 3.20pm of an afternoon;

   c)After he commenced working night shift, he continued to care for the child during the day, instead of resting in preparation for working the nightshift;

   d)The paternal grandmother would provide respite to the parents by looking after the child overnight until the afternoon on the next day on approximately 10 occasions each month;

2. The father says that after the incident on 3 January 2018, the mother had indicated to him through the Police, that she would abide by the previous consent orders (which were made on 5 December 2017 but then discharged on 19 December 2017) and it was on that basis that he returned the child to her.

3. The father says that he has a strong support network in (omitted), that his extended family has had involvement with the child’s care in the past, that the child has established relationships with the father and the paternal family. The father also says that the mother has been employed in the (omitted) area in the past and that there are suitable employment opportunities for her in the area. The father works shift work, two days and two nights, namely between 25 and 35 hours per week, and is available to care for the child otherwise.

4. The father has offered to assist the mother financially by paying $200 per week towards her rental accommodation in (omitted) for a period of six months. The paternal grandfather has once again offered up his home for the mother and the child to return to.

5. The mother says that she is fearful of the father and that she is of the view that the time between the child and the father ought to be supervised because of the father’s mental health issues. The mother was not able to point to any diagnosis or prognosis which would objectively suggest that the father had any mental health issues which impaired his parenting such that the child was placed at risk. The mother’s evidence referred to the father having a scar on his wrist and him self-reporting to the mother that this was an attempt at self-harm. Although such a conversation is said to have occurred on 22 November 2017, it is not known when the alleged attempt at self-harm was said to have occurred. In any event, after this alleged disclosure by the father to the mother, the child had spent some time with the father on an unsupervised basis.

6. The mother’s evidence is that she has a strong support network in Sydney, that she feels uncomfortable and unsupported in (omitted), that her prospects of employment are limited in (omitted) and that:

   Due to significant distance between (omitted) and Sydney, the cost of travel and time constraints, my mother, my father and other family members and close friends were not able to visit me in (omitted) on a regular basis.

7. Since her move, the mother has been living with the maternal grandmother and maternal uncle in a three bedroom home. The child co-sleeps with the mother. The mother says she has commenced research into rental properties, and that she is not working and looking after X on a full-time basis. In the event that she does commence work, the mother proposes for X to be enrolled in day-care in the event that her mother and father are not able to look after the child.

8. The mother says she is eager to facilitate a strong relationship between the child and the father and to that end she has sent photographs of the child to the father.

9. In her application however, the mother proposes the child spend three hours on the first Saturday and Sunday each month in Sydney with the father, with such time being supervised by a contact service and such supervision to be paid for by the father. She also acknowledges throughout her own evidence, as referred to in paragraph 27 above, that there is significant distance and cost of travel such that regular visits between (omitted) and Sydney were difficult for her family. It would no doubt be the same for the father if the child remained in Sydney.

10. While it is not the subject of any direct evidence in the mother’s case, it is apparent from the evidence[4] that an inference can be drawn that the mother knew the father was opposed to the child’s residence being relocated from (omitted) to Sydney as at 5 January 2018. It is an inference that the Court draws in this instance.

    [4] For example the commencement of the Magistrate’s Court proceedings and the consent orders entered into on 5 December 2017 albeit subsequently discharged due to the parties’ reconciliation after the mother moved to Sydney in November 2017

11. In terms of the proceedings, the father commenced recovery proceedings in the Magistrates Court of Victoria less than a week after the mother relocated with the child to Sydney. He did so on 10 January 2018. The mother also received a lengthy text message from the father’s solicitors on the morning of the same day, notifying her of his opposition to the move and that a recovery order would be sought if she did not return. That text message indicated as follows “We believe your relocation under these circumstances was to avoid the legal process to properly determine all relevant matters… We are in the process of issuing legal proceedings out of the (omitted) Court returnable on Tuesday 16/01/2018.”

12. The mother had previously been represented by Victorian solicitors[5]. On 10 January 2018, she engaged her current solicitors. By this stage she had already relocated with the child and it appears that she was already on notice about the father issuing proceedings in the Magistrates Court in Victoria for the child’s return. It was after the relocation that she commenced proceedings in the Federal Circuit Court of Australia, at Parramatta, for the child to live with her. The mother’s primary affidavit was sworn on 11 January 2018, after she had received the text message from the father’s solicitors putting her on notice about the father’s application[6].

Report of Ms M, Registered Psychologist

[5] This was in December 2017 when the father had initially commenced proceedings in the Magistrates Court of Victoria

[6] albeit such application was not served on her until 12 January 2018 . The mother says “I was not aware as to the validity of these comments”. The Court infers that she was in a position to seek advice about the comments as her affidavit was sworn on 11 January 2018, such affidavit being witnessed by the solicitor who ran the interim hearing on behalf of the mother

1. The mother had sought the assistance of a psychologist in (omitted) to help her deal with her feelings of dissatisfaction with life, that is, she was referred for Dysphoria. Her initial referral was dated May 2017, and she was seen by the psychologist eight times for therapy since her intervention commenced.

2. A progress report of her treating psychologist was an Exhibit in the proceedings. That was a report addressed to the mother’s solicitors and did not contain any information as to how the report came to be prepared. It is dated 20 December 2017 albeit it was clearly written after this date as it refers to an event on 3 January 2018. That report contained the following:

   Ms Petheridge outlined in this initial session that she felt extremely isolated here in (omitted), had very little support and was the primary carer of her son, with Mr Reader working long shift work around a 24 hour clock. Ms Petheridge stated that by moving here she had given up her career as a (occupation omitted) and was financially dependent on her partner. Ms Petheridge went on to explain how she felt she had a strained relationship with her in laws, which she felt was apparent from the minute she met them…

   [at the 5^th session in December 2017] Ms Petheridge reported she had moved in with her father in law… and had been told she can not return to Sydney. Ms Petheridge was very emotional during this session; she stated she felt deeply betrayed and increasingly anxious about being alone and trapped here in (omitted)… Although she stated she felt supported by Mr G at this time, she was aware and concerned of this being a longer term option as Mr G constitutes part of Mr Reader’s extended family and probably not appropriate for them to be independent in the long term. Additionally, we discussed Mr Reader’s bid for custody of X and Ms Petheridge reflected again how this had distressed her also, as she felt Mr Reader had contributed very little to X’s basic primary daily care… It was evident from this session that Ms Petheridge was suffering from reactive anxiety due to the situation and we discussed strategies to help relax her and decrease this symptomatology.

   On the 3/01/2018, Ms Petheridge phoned me out of hours on my personal mobile (which I give to clients for emergency situations) to explain that Mr Reader and his mother Ms V had come to her father in law, Mr G’s house, where she was residing, and had forcibly removed X from her. Ms Petheridge explained that the police had been called and that she had tried to stop Mr Reader from taking X by grabbing hold of his shirt, which had ripped at the time, however she stated she did not intend to hurt Mr Reader in anyway.  We discussed how Ms Petheridge felt increasingly manipulated, threatened and extremely unsafe residing here in (omitted) with Mr Reader’s family, where Mr Reader could come and go as he liked and where she felt she had no support or privacy to live her own life independently… We discussed options for her to investigate returning to her own support network in Sydney as there was no court orders in place and I encouraged Ms Petheridge to seek further legal advice regarding her rights to do this.

   … I can not comment at this time about her relationship with her partner or how the family interrelates as our therapy has focused on Ms Petheridge’s presentation, her emotions and coping strategies for her. We have been working on managing her symptoms and anxiety by seeing her more regularly during this time and my plan is to continue to do this to help support her at this time.

3. It is likely that the report was written purely for the purposes of the interim hearing and it would have been of assistance to the Court to know how it is that it came to be written. The report, as is evident from the concluding paragraphs quoted above, was based solely on what the mother had reported and Ms M to her credit, did not comment on the relationships.

1. It is clear from the report that the mother had sought and received appropriate assistance in dealing with her dysphoria and reactive anxiety. It is a support that remains available to her in (omitted). There is no suggestion by Ms M that the mother’s parenting capacity has been compromised as a result of the conditions for which she was being treated.

The Law

1. The Court, in determining this application, has to consider what orders are in the children’s best interest. In determining what is in the children’s best interest, the Court must consider the matters set out in section 60CC of the Family Law Act1975. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interest of the children. In applying the primary considerations, the Court is to give greater weight to the considerations set out in paragraph 60CC(2)(b). In addition, in considering what order to make, the Court must, to the extent that it is possible to do so, ensure that the order does not expose a person to an unacceptable risk of family violence. The Act does not mandate the discussion of considerations under section 60CC in any particular order, and it is well recognised that additional considerations may outweigh the primary considerations.

2. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In the interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.

3. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interest and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents.

4. Section 65DAA is expressed in imperative terms. The Full Court in Goode & Goode[7] mandated that this legislative approach must be followed in all parenting cases and, in particular, set out the procedural steps to be followed on an interim application noting that in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place. 

   [7] (2007) 36 FamLR 422, (2006) FLC 93-286

5. In Marvel & Marvel[8], the Full Court made the following obiter comments. 

   As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary, but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult, and often, for very good reason, a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the children’s best interests.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at final hearing… 

   [8] [2010] FamCAFC 101 at [120]

6. In Keats & Keats[9], the Full Court held in respect of the conduct of interim proceedings:

   …that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.

   [9] [2016] FamCAFC 156 at [9]

7. Relevantly to the current application, in Morgan & Miles[10], Boland J made a number of very important and appropriate - to the facts of this case - comments in relation to what are frequently termed interim relocation applications. Those comments have been cited with approval by the Full Court on numerous occasions.[11] 

   [10] (2007) FLC 93-343[10]

   [11] See for example: Malcolm & Munro (2011) FLC 93-460

8. In Sayer & Radcliffe and Anor[12] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:

   It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)

   [12] [2012] Fam CAFC 209 at [47]

Relevant Considerations

1. By its very nature, an interim hearing is a curtailed hearing.  Evidence is limited, and the matter is decided on the papers.  The chronology in this matter, which was referred to at the beginning of these Reasons, is important.  It is furthermore important for this Court, when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.[13]

   [13] Morgan & Miles (2007) FLC 93-343 at [79]

2. The chronology of these and other related proceedings, speaks in favour of an argument that the mother is not particularly focussed on the child’s needs and the importance of a meaningful relationship between the child and the father.

3. The mother seeks an order for sole parental responsibility. Having considered the evidence in the proceedings the Court does not find that the presumption of equal shared parental responsibility has been rebutted on the basis that the Court does not consider that it is not appropriate for the presumption to apply[14].

   [14] S61DA(3)

4. The parties have joint parental responsibility pursuant to the Act. An order for them to have equal shared parental responsibility is an order that is appropriate in all of the circumstances[15]. It is important for long term decisions regarding the child to be made jointly by the parents, and that such unilateral decisions as have taken place to date not occur in the future.

   [15] Furthermore, while each of the parents has made allegations of family violence against the other, those allegations are yet to be tested. Even if there were reasonable grounds to believe that a parent has engaged in family violence, such that the presumption was rebutted, in the present circumstances it is still appropriate for an order for equal shared parental responsibility to be made.

5. The child is very little, and the current distance between his parents’ residence, means that there is very little opportunity for him to spend time with the parent with whom he was not living.

6. The father’s evidence is that he is not in a position to move to Sydney. He was born and grew up in (omitted). He has a job in the area and is presently assisting his mother with support. If the child was to remain living in Sydney, the father would not be able to travel to see him except in very limited circumstances, and his proposal is to spend time with the child every eighth weekend, for day time only and to gradually work to overnights by the time the child is two years old. The gradual increase in time is a child focused application and one that takes into consideration the child’s attachments and developmental needs. The difficulty with the proposal is that it would realistically mean that the child only spends approximately 14 days per year with the father. It is insufficient time for the child to bond with the father and to develop any sort of meaningful relationship.

7. The mother’s evidence is that she does not want to move back to (omitted) because her support network is in Sydney. She does not work and she does not live in her own home but is living with relatives. She proposes to find rental accommodation, albeit she does not explain how she will pay for it.

8. The father has said to the Court that he will assist the mother for a period of six months by paying $200 towards her rental accommodation in (omitted), if she does not take up the invitation of living in the paternal grandfather’s residence.[16] The father says that according to his searches, the median price for a two bedroom home in (omitted) is $230. The Court, sitting in Parramatta, has some knowledge of Sydney rental prices, and the median price in Sydney for a two bedroom home is likely to be higher.[17]

   [16] Where she and the child were living just before moving to Sydney

   [17] The mother currently lives in (omitted).

9. She proposes to place the child into day-care when and if she commences work and her family are not able to assist. The father opposes the child attending day-care on the basis that if the child lived in (omitted) (and the mother worked), he would be able to care for the child on the days he is not working and his family would also be able to assist. There would be no need for the child to be placed in day-care.

10. The mother proposes for the child to spend three hours once a month on a Saturday and Sunday with the father, with such time to be supervised. The mother proposes for the father to pay the cost of supervision and the cost of him travelling to Sydney and staying there once per month so that he can spend six hours of supervised time with the child. The mother’s proposal does not in any meaningful way support a relationship between the child and the father. Indeed, one could take the view that it is designed to ensure that the child does not have a meaningful relationship with the father. But of course, such a finding could only be made after the evidence was tested, which to date it has not been.

11. The mother submits that the reason the time should be supervised is because the father poses an unacceptable risk of harm to the child – such unacceptable risk arising out of a likelihood that the father may self-harm on the basis that he has mental health issues. There is of course no evidence of a diagnosis of any mental health issue. The father gives evidence about counselling he received in order to assist him with the relationship breakdown. The evidence in the father’s case confirms that he has not been treated for any mental health condition. The best that the mother can do is point to a conversation during an argument with the father where he allegedly said that a scar he has on his wrist is from an attempt at self-harm. As noted earlier, after this conversation, the father continued to spend unsupervised time with the child.

12. The mother says she is fearful of the father in that he may try to snatch the child because he tried to do so on 3 January 2018, during the incident which involved the police. The father removed the child from the mother, on his evidence, because the mother was refusing to permit the child to spend time with him except on a supervised basis and because he had concerns she was going to leave (omitted). Upon receiving an assurance that she would and that he would spend time with the child in accordance with the previously discharged interim orders, the child was promptly returned. While not an excuse for the father’s bad behaviour, it is an explanation, which on the face of it does not indicate that the father or his behaviour poses an unacceptable risk to the child.

13. In respect of the mother’s other complaints, that is that the father comes and goes as he pleases (in reference to the paternal grandfather’s home) and any suggestion that the father was spending time with the child when it suited him, time set by orders will ensure that the chance of such things occurring is minimised. As such, certainly of time provided for by orders, is in the Court’s view a significant deterrent on both parents to interfere with the other parent’s time with the child.

14. An order for equal time, given the child’s age and developmental stage is not in his best interest.

15. It is the Court’s finding that an order for the child to spend regular and meaningful time with the father is in the child’s best interest. This can only happen if the child and father are living in close proximity to each other.

16. The mother will have a period of six weeks to make arrangements to move back to (omitted). The father will, if necessary, assist her by providing in addition to the child support payments he currently makes, an amount of $200 per week to help the mother in housing herself and the child. It may be that by the expiry of six months the mother has found suitable employment or has her finances sufficiently in order that such further assistance is not needed. If the mother proposes to be self-sufficient in Sydney, there is no reason why she cannot be self-sufficient and living in (omitted), at least in the interim.

17. The absence of any discussion of a particular section 60CC factor or any particular matter referred to by Boland J in Morgan & Miles does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factors either have limited relevance in the circumstances of this case or the Court. But certainly the Court’s mind was turned to each relevant section 60CC factor and each of the considerations raised by Boland J in Morgan & Miles. 

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these reasons.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  5 March 2018