TANDY & EASTMAN

[2020] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANDY & EASTMAN [2020] FCCA 541

Catchwords:
FAMILY LAW – Parenting – interim order – best interests of child – right to meaningful relationship with both parents – where mother unilaterally relocates child – where child is an infant – where mother is primary carer – where child spends time with father – where mother alleges family violence against the father – where the Court not satisfied there is an unacceptable risk of harm to the child or to the mother– mother to return her residence and that of the child to Darwin until further determination can be made by the Court.

Legislation:

Family Law Act 1975 (Cth), ss.60C, 60CC, 65DAA

Cases cited:

Adamson & Adamson (2014) 51 FamLR 626

Oswald & Karrington (2016) 55 FamLR 344
Goode & Goode (2006) 206 FLR 212

Applicant: MR TANDY

Respondent: MS EASTMAN

File Number: DNC 82 of 2020

Judgment of: Judge Young

Hearing date: 19 February 2020

Date of Last Submission: 19 February 2020

Delivered at: Darwin

Delivered on: 19 February 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms McGowan

Solicitors for the Respondent: Kyle and McGowan Family Law

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That within 28 days the mother is to relocate her residence and that of X born in 2018 (“the child”) to Darwin.

2. That if spend time orders are sought the parties are to make a separate application.

3. That the mother file and serve an amended Response setting out proposed property orders, a financial statement and affidavit in support with 28 days.

AND IT IS ORDERED:

1. That pursuant to s.11F of the Family Law Act 1975 the parties attend a reportable child dispute conference at the Federal Circuit Court of Australia Darwin on 16 April 2020 at 9:00am with a family consultant, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

2. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

3. That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 23 June 2020 at 9:00am.

4. That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

5. That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.

6. That within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

7. That the parties prepare a draft joint statement of assets and liabilities on or before 23 June 2020 at 9:00am.

8. That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.

9. That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.

10. That the matter be adjourned to 31 August 2020 at 11:00am for further directions.

11. That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.

12. That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.

13. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 July 2020.

14. That the family report is to deal with the following matters:

    (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

15. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

16. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

17. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) in the proceedings.

18. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)Children’s Court;

    (b)child protection authority;

    (c)State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

UPON NOTING

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 21 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

D.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

E.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

F.That in the event any party in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

IT IS FURTHER ORDERED

1. That the matter is listed for trial on 23, 24 & 25 September 2020 (allowing three days)

2. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness and updated financial statement complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

3. That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

4. That at least 48 hours prior to trial, Counsel for each party file and serve a Case Outline document which clearly identifies the following:

   Parenting orders

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

   Property orders

   (a)a list of the material relied upon;

   (b)a statement of any agreed facts;

   (c)a brief chronology listing significant events;

   (d)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

   (e)main contentions in dispute as to:

   (f)inclusion in the pool; and

   (g)value of assets;

   (h)list of contributions claimed or contended for (including expression as a percentage);

   (i)list of other factors relied upon (section 75(2) factors) and percentage adjustment contended for;

   (j)other relevant contentions to determining a just and equitable division of property; and

   (k)the actual orders sought.

5. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

6. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

7. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

THE COURT FURTHER NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 82 of 2020

MR TANDY

Applicant

And

MS EASTMAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application about X who is 20 months old.  The mother unilaterally relocated with X from Darwin to City B on or about 3 February 2020.  The father commenced proceedings on 10 February 2020 seeking a return of the child to Darwin and a recovery order should she not be returned.  He also sought live with and time orders, providing for the child to live with each parent on a two or three day roster over the fortnight, that is, care alternating between the parents every two or three days in an equal time arrangement. 

3. The father sought an order that if the mother chose not to return to Darwin then there be an order that the child live with him.  The mother’s response sought orders that the child live with her in City B – in other words, she be permitted to relocate the residence of the child to City B, and that the child spend time with the father over four nights every two months in two blocks of two nights each, separated by one night. 

4. The mother proposed that she and the child would fly to Darwin and the expense of travelling of the flights would be shared equally between the parties. On my calculation, that would see the child spending approximately four nights with the father about every 60 days.  In addition, the mother proposed that the child spend a night with the father should he visit City B, in addition to some hours during the day. 

5. The background to the matter is as follows.  The father is 38 years old.  The mother is 33 years old.  In 2013 the father moved to Darwin to work as a health care worker at the Employer C.  In 2014 he commenced a private business in partnership with another health care worker.  Apparently, he no longer works in the partnership but he continues to operate a private business in Darwin.  In May the parties began a long-distance relationship.  In 2015 the mother relocated to Darwin to live with the father. 

6. In mid-2016, the mother learnt of her mother’s cancer diagnosis.  Her mother at that time resided in City B.  In 2017, the parties married.  X was born in 2018.  The mother ceased full-time work around about or perhaps shortly before X’s birth.  It is unclear to me on reading the materials what her employment was at that time, but as she is presently employed by, she says, Employer D, which I understand to be an emanation of the Employer E in an executive role, it may be that she was in similar or identical employment then.  I do not know precisely.

7. Sometime around this period, the mother’s mother visited Darwin and received treatment over some weeks in Darwin, her condition having deteriorating rapidly it would appear.  It is again unclear from the mother’s material exactly how long her mother remained in Darwin receiving treatment but I have the impression that it was at least some weeks.  Thereafter, the mother’s mother returned to live in City B where her home was and is.

8. From about January 2019 to June 2019 the mother worked 15 hours a week in the father’s business.  She also returned, it would appear, to work with the Employer E for two days a week.  She has now increased that time and at the time of her departure for City B in 2020 she was working four days a week for the Employer E, as I say, in an executive position.  The parties separated in August or September 2019.  Thereafter, the mother leased an apartment in Darwin and it appears she still has a lease on that apartment. 

9. The mother is presently on leave from her employment.  However, she is employed in Darwin and that employment appears to be permanent and, as I have already mentioned, she leases an apartment here where she and the child resided after separation.  After separation the child was primarily cared for by the mother, I am satisfied.  That was not really challenged by the father.  The father said, however, in his affidavit material that he spent “two or three nights” a week with the child and some unspecified times on the weekend.

10. The mother’s evidence is much more specific and she identifies 16 nights between 2019 and 2020, a period of 126 nights, on my calculation, where the child spent time with the father, that is, 16 nights.  In addition, however, the child went on holiday to Country F with the father without the mother between 2020 and 2020, about 20 nights.  Taking all that into account, that is something like the child spending 36 out of 146 nights with the father between the time of separation and the mother’s departure to City B with the child. 

11. I raise that in particular because it was submitted by counsel for the mother that over that period the child had spent only 16 out of 150 nights with the father.  That is not consistent with my arithmetic.  While it does not appear to be in contention that the mother is the child’s primary carer, nor does it appear to be in contention that the child has spent substantial time in the father’s care since the parties’ separation in August or September 2019.  The mother claims that her departure was precipitated by a final episode of family violence following a course of a coercive and controlling behaviour by the father and denigrating and/or threatening language.

12. The mother’s affidavit was filed on 14 February 2020 before the hearing on 17 February, or the first day of the hearing, on 17 February 2020.  The father complains in his affidavit material that he has not had sufficient time to adequately respond to the mother’s allegations.  However, in a responding affidavit filed on 17 February 2020 before the adjourned hearing on 18 February 2020, he denies the most serious allegations by the mother and does not respond to others.

13. I accept that notwithstanding that the father did not seek an adjournment to file further material or more detailed material that there was limited time before the hearing, particularly on the second day of the hearing on 18 February, for the father to respond to the mother’s allegations.  The mother’s affidavit ran to 51 pages, including annexures.  The allegations made by the mother in relation to family violence cover about 14 pages of her affidavit.  I do not propose to deal with all of the assertions or claims she makes.  However, I do propose to say something about the ones that appear to me to be the most significant.

14. At paragraph [103] of the mother’s affidavit under a section headed “The first time Mr Tandy hit me”, she describes an episode in 2016, that is, before the parties’ marriage, where she had been out with friends and returned to the parties’ home at about 2 am.  My interpretation of her affidavit evidence is that the father was jealous, questioned her and, as she said, “struck her five or six times in the back with reasonable force”.  The father’s version of that event in his responding affidavit is that the mother returned to the home highly intoxicated and, as they lay in bed, she was leaning on him and he elbowed her “once or possibly twice” to force her to move away. 

15. At paragraph [115] of the mother’s affidavit, she says that in July 2018 the father threw baby wipes at her that had been used to clean up the child’s vomit.  She does not say whether she was hit by the wipes.  At paragraph [121] she says that in August 2018 there was an argument in the presence of the child and the father’s mother and, she said, an argument about whether or not the child should be using a dummy.  The mother said that the father became angry and raised an elbow as if to strike her, but did not.

16. She says in her affidavit that she later asked the father’s mother whether she had seen what happened and the father’s mother said she had not seen what the mother described. 

17. At paragraph [135] the mother says that on 6 April 2019 she told the father that she wished to separate. There was some reference later in the day to Madeleine McCann, the British child who was abducted in Spain or disappeared.  The mother said that the father said,

    “If anyone took my daughter away, I would break their fingers.  So watch yourself, sweetheart”. 

    The mother says that that threat, as she describes it, of physical harm was directed to her and was intended to be a reference to the mother’s apparent desire to travel interstate.  The father in his responding material admits that he made a comment about the Madeleine McCann case but denies that his comment about breaking fingers was in any way directed towards the mother.

1. At paragraph [137] the mother says that on 25 April 2019 the father “grabbed” her “vagina roughly”.  At paragraph [138] the mother refers to and reproduces the words of an SMS message sent to the father about what had happened the previous day.  She said in that text that the father “asking about her vagina” was “highly inappropriate” and “emotionally abusive”.  The SMS did not characterise whatever had happened between the parties as an assault or even a rough grabbing.

2. It also should be mentioned that the mother described in her affidavit what she called “the final incident in Darwin”, in 2020, when the father and the child returned from their holiday in Country F. The narrative is a little difficult to follow but my understanding of it is that the mother had driven to the airport to collect the child and the father.  While they were in the car together there was a verbal argument about whether the child should remain with the father or go with the mother.

3. The mother says that the father behaved in “an elevated” and “rough” manner and she says that the father attempted or, indeed, did grab car keys from her pocket.  Apparently things settled to some degree because then the mother, or the parties at least – it is unclear who was driving – then drove to the father’s residence with the child.  There was some further argument but the mother then left with the child.  The father essentially denied that he had acted in an aggressive or an elevated way, and said that, on the contrary, it was the mother who was “elevated” and raising her voice.

4. Obviously, in an interim hearing of this kind it is impossible for me to make findings about what may or may not have happened at that incident.  I am satisfied there was a very unpleasant argument but beyond that I cannot make a finding.  Nevertheless, even though I cannot make findings, I give the allegations made by the mother some weight.  The mother also gave evidence in her affidavit of conversations, which made up a large part of the 14 pages that I have mentioned, between her and the father. 

5. Many of those conversations appear to have taken place just before the parties separated, while they were discussing separation, or soon after.  The mother quotes conversations where she claimed the father spoke in an offensive, denigrating or aggressive manner to her.  As I said, she provided some detail about that.  I do not propose to discuss that evidence in any detail. 

6. I note that the mother has also annexed parts of SMS conversations between her and the father and in those SMS conversations some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown.  However, the language was not threatening.

7. All in all, I consider that the mother’s family violence claims are not particularly forceful or compelling.  Most of her evidence rests on interpretations of events and attaching meanings to events which might be seen as ambiguous or statements which might appear to be ambiguous.  It may be that she has interpreted what has happened in that way.  It may be her interpretation is wrong.  I do not know.  I do not propose to make any findings about that.  As I say, many of her claims relate to the father’s language, which I have made some remarks about.

8. I am not suggesting that language cannot be coercive or controlling and cannot constitute family violence but every case involving words and conversations involves some assessment or some interpretation.  While I accept that there have been unpleasant and distressing exchanges and verbal exchanges between the parties I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.

9. The mother also emphasises in her affidavit material that her mother has a terminal illness.  That does not appear to be in contention.  It is said by the mother that one of the reasons for her relocation to City B is so that the child may develop a relationship with her grandmother, the maternal grandmother, in what, according to the mother, is expected to be the last year or two of the child’s grandmother’s life.  There is, in my view, some incongruity in saying that the child and the grandmother need to reside in the same town or city in order to develop a relationship but the child and the father do not.

10. I adjourned the hearing of this matter to yesterday to hear submissions about the Court’s power to make a parent move their residence in circumstances where I did not consider it appropriate, as I was urged by the father’s counsel in this case, to make an order that the child live with the father in the expectation that the mother would then be obliged to follow. I do not consider such an order would be a proper exercise of the Court’s power under the Family Law Act. I am satisfied that it is in the child’s best interests to continue living with the mother.

11. A number of matters were not in dispute in this case, or were not contentious or were otherwise agreed.  I am satisfied of the following matters:

    (a)The parents have lived in Darwin for some years.  Both continue to have their own separate residences available to them.

    (b)Both parties have professional employment here.  In addition, the father operates a private business.  It may not be practical for him to move to City B or perhaps elsewhere - Sydney was suggested by the mother – at short notice although that is not to say that in the longer term it may not be a different matter.

    (c)The mother is the primary carer of the child.  However, since separation the child has spent substantial time with her father, on my calculation approaching 25 per cent of nights, including the period of almost three weeks that the child spent in Country F without the mother, with the father and, as I understand it, with other relatives or friends of the father.

    (d)Having regard to the child’s sensitive stage of development – she is not yet two; she is a 20 month old infant – I do not consider it to be in the child’s best interests for her relationship with her father to be confined to four nights every two months, as is the mother’s central proposal.  I consider that such a proposal is likely to have a deleterious effect on the child’s relationship with her father.  I should mention in passing that in oral argument counsel for the mother made another proposal, which was that, essentially, the father should spend his leave in New South Wales.  As far as I could see, that proposal was raised for the first time in oral submissions and I am not satisfied that there has been an adequate opportunity to explore the practicalities of that, and I do not propose to give that matter further consideration.

    (e)I am not satisfied that there is an unacceptable risk of harm to the child or to the mother if both continue to reside in Darwin or resume residing in Darwin, at least until the trial of the issues can be held, most probably in or about September 2020. I propose to set the matter down for trial today.

    (f)Having regard to the matters in section 65DAA of the Act, I am satisfied that it is reasonably practical for the child to spend substantial and significant time with the father. The question of equal time, in my view, while raised by the father, is not a matter that I can give any real consideration to in this truncated hearing.

    (g)Both parties propose that there be an order for equal shared parental responsibility.

12. I was referred to some case law, which I do not propose to discuss in great detail.  I asked for submissions from the parties about the power of this Court to make coercive orders of the kind that I have described, that is, a coercive order directed to the mother that she resume living in Darwin in order to continue to fulfil the role of primary carer of the child.

13. I was referred to Adamson & Adamson (2014) 51 FamLR 626 where this question was discussed by the Full Court. At paragraph [35] the Court indicated that there was a power to make such a coercive order requiring a parent to move. That case did not concern interim orders, as is the case here. It was said in another case I was referred to, Oswald & Karrington (2016) 55 FamLR 344 at paragraph [16], that such a coercive order is at the extreme of the Court’s discretionary power and is “rare” and “extreme”. I accept that is the case.

14. Oswald & Karrington made it clear that there must be a consideration of alternatives before making a coercive order of the kind sought here.  In my view, the only alternative offered is the one I have described, that is, that the mother and child travel to Darwin every two months and the child would spend four days with the father over a period of five days in blocks of two nights.  I do not consider that that alternative is likely to be one in the best interests of this very young child at a sensitive developmental stage, as I have already mentioned.

15. While it seems possible that the mother and the child could fly to Darwin more frequently this was not explored in any way and it was not referred to in the affidavit material.  Having regard to the distance, flying time and the expense, I would expect that those matters would militate against a more frequent travel regime.  As the Full Court decision in Goode & Goode (2006) 206 FLR 212 makes clear, it is not simply enough for a Court considering a case such as the one before me to simply refer to the status quo even in an interim hearing, and the process required is that set out in Part VII of the Act, that is, a consideration of the bests interests of the child having regard to the relevant legislative provisions.

16. In this case, I am satisfied that the primary considerations are the benefit to the child of having a meaningful relationship with both parents. In the context of this case, that means the father. I consider that that meaningful relationship is likely to be made difficult with such a young child if the child is living in City B and the father is living in Darwin. The matter in ss 60C(2)(b) does not appear to be a factor that needs to be considered.

17. Although I do note that in at least two of the incidents referred to by the mother, that is, the alleged incident with the child’s dummy and the raised elbow, and the alleged angry and loud and aggressive behaviour of the father at and after the airport in 2020, the incident allegedly occurred in the presence of the child. However, I am not satisfied that there is any need to protect this child from physical or psychological harm in the context of this case. 

18. Having regard to the matters in subsection (3), the most salient matters are, I think, (b); there is nothing to suggest that the child does not have a good and close attachment to each parent, though, of course, the child would appear to be primarily attached to the mother as the primary carer;  (c) is not relevant in the circumstances of this case or (ca); (d) the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents.  What is being proposed here is, on the one hand, a relocation to City B and, on the other hand, a coercive order that the mother continue to live in Darwin, at least until the trial.  I have already made comments about that.  I consider that it would be not in the child’s interests to be separated from either parent, but in the context of this case from her father.

19. In (d), of course, there is a reference to any other person, which may be read as including a reference to the maternal grandmother, as that is an issue raised by the mother.  I am satisfied that the child’s relationship with the maternal grandmother has, apparently, been maintained or carried on with the child living in Darwin and the maternal grandmother living in City B.  I would expect to some degree that it could continue.  However, in my view, the relationship between the child and a parent is the primary consideration set out in subsection (2).

20. In (e), the practical difficulty and expense of the child spending time with and communicating with a parent and so on, I consider that under the mother’s proposal there will be great practical difficulty in the child spending time and communicating with the father, having regard to her age;  (f) does not appear to be in issue.  It would appear that both parents have the capacity to provide for the needs of the child, including her emotional and intellectual needs; (g), (h) and (i) do not appear relevant.

21. For (j), the question of family violence, I have addressed that issue; (k) there is no family violence order; (l), I do not propose to discuss; (m) any other fact or circumstance the Court considers relevant.  I was not told by either party, or particularly the mother in this case, as her lawyer is based in City B, what the waiting time for a trial in City B is.  I have no idea.  As I raised with counsel in argument, I had understood that City B is one of the busiest registries in the country.  That was not challenged.  But the fact is I simply do not know how long a trial in City B will take.

22. I propose to set this matter down for trial here in Darwin on the assumption that it will take three days in September 2020 and I will provide dates for that in a moment.  I also propose to make an order for the preparation of a family report, assuming that relocation is still the mother’s preferred option.  There will be an order for the preparation of a family report later in the year in approximately July.  I also propose to make an order for a child dispute conference between the parents - a child dispute conference does not involve the child – between the parents as I note there has been no mediation between these parties at this stage, and I consider that is important.

23. I do not propose to make time orders.  I think it is appropriate that the parties discuss this themselves.  But I would expect on the material that I see that there would be an order that the child spend substantial and significant time with the father.  Whether the material would justify an equal time arrangement of the kind sought by the father, I am far from sure about: again I would expect the parties to discuss that.  I don’t have any concluded view about that and I haven’t heard submissions. 

24. I did recall that there was some reference in an argument to whether or not the mother had a car, should she return to Darwin.  There was only a passing reference but we will make it clear:  if the mother is to return I expect her to be provided with a motor car, and a serviceable one at that.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 12 March 2020