Donaldson & Henderson [2012] FamCA 53

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Orders

The child, C, born … April 2004, live with the Mother.

A condition of the Order for C to live with the Mother be that the Mother reside until further Order with her own mother, Ms L Donaldson.

C spend time with the Father at all times as agreed between the parties, but failing agreement:

Each alternate weekend from after school Friday until before school Monday provided that such time is spent in Town 1.

The Mother allow C to have telephone contact with the Father between 6.00 pm and 7.00 pm each Tuesday and Thursday.

Any other outstanding Applications be adjourned to the first day of trial on 26 March 2012.

The Father file and serve an Amended Response in the substantive proceedings and an Affidavit of his evidence in chief on or before 4.00 pm 14 February 2012.

A transcript of Mr P’s evidence today be provided to each of the parties and to the Independent Children’s Lawyer.

The changeover for the purpose of these Orders be forthwith facilitated at the Court Counselling section, preferably by Mr P.

The Respondent and the Independent Children’s Lawyer’s costs of and incidental to this hearing are reserved to trial.

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

EX TEMPORE REASONS FOR JUDGMENT

The trial of parenting proceedings concerning C, born in April 2004, is to take place before me on 26 and 27 March 2012, less than two months away. The circumstances giving rise to the current application are that on 7 January of this year, C was removed by the Father from his then place of residence in Town 1 and taken to Town 2 by the Father without the Mother’s knowledge or consent.

By way of background, C’s parents met in Town 3 when the Mother was sixteen and the father was twenty-one years of age. They commenced cohabitation in March 2003, living predominantly in Town 1, with a short period in Town 4 when the paternal grandparents helped to care for C. The parties separated on a final basis in December 2006, and these proceedings were commenced by the Father in March 2009.

The Father, who I understand is now aged 29 years, is a technician, and currently resides in Town 2 with C, his current partner and fiancée, and their daughter, aged approximately three years. The Father originally resided in Town 1, western Queensland, at the time of the commencement of these proceedings in March 2009, and subsequently amended his Initiating Application to include his new residential address in Town 5. As noted, the Father relocated to Town 2 in early January and unilaterally removed C from Town 1.

The Mother, who is now aged 24, continues to reside in Town 1 with her own mother and, I understand, her grandmother, and it is clear that C’s maternal grandmother, Ms L Donaldson, provides support for the Mother in her care of C at times when C is with the Mother. It would appear that the Mother has now been in some stable employment for some years at the Town 1 Hospital.

The history of the matter is that the Mother has a psychiatric history and admits to depression, and that included an episode when C was about five months of age when the Mother called Lifeline with suicidal thoughts or feelings but says that she did not threaten C in any respect. The Department of Communities (Child Safety Services) (“the Department”) became involved after that incident and the child was cared for by the paternal grandparents whilst the Mother sought psychiatric care. It seems the Mother was hospitalised in Town 6 for mental health issues for periods in 2007 and 2008.

There are a variety of allegations made by each party against the other which will be a matter for the trial. For example, the Mother alleges a history of domestic violence and drug use by the Father and six months after the parties separated the Department investigated an allegation of physical harm by the Mother which was found then to be unsubstantiated.

It seems on the history of this matter that C was in the Mother’s primary care until he was about six years of age. Over that period, C spent time with his Father by agreement each weekend form Friday afternoons until Monday morning. There is a history, briefly referred to, of the Father withholding C from time with his mother, although the Father explains he had reasons for that and no doubt that will be a matter visited again at the trial.

Relevantly, Orders were made on 5 May 2011 by FM Howard for C to live with the Father and spend time with the Mother each alternate weekend, and in the off week from after school Wednesday to before school Thursday, and there was an Order made for that time to be supervised by the maternal grandmother. FM Howard transferred the proceedings to this Court in July of last year.

Prior to this Application, in July 2011, the Father filed an Application in a Case seeking to discharge previous Orders which would then allow him to relocate to NSW Town T with C. The Mother opposed that Order and sought a shared care week about arrangement. In October 2011, the matter was set down for trial. However, in January 2012, the Mother was notified via a text message that the Father had relocated to Town 2 with his partner, their daughter, and the subject child.

The Father deposes to concerns he has for the Mother’s mental ability to look after the child, and expresses the view that he does not feel that, “…living in an all-female environment is best suited for a child of his age.”

The Father has also referred to what he says are the unattainable (by him) rising cost of living in Town 1 as a reason for his relocation and expresses in his submissions that it was not his intention to reduce the relationship between C and his mother, but rather that he was motivated by the other demands upon him and his concerns for other members of his family.

Given the relevant background which I have briefly referred to, for the purpose of today’s hearing, arrangements were made for Mr P, Family Consultant of this Court, to interview the parents of C, the maternal grandmother and C himself.

The focus for me on this Application is to determine what it is in C’s best interests between now and a trial to take place in a couple of months.

The Father submits that C has settled in his situation in Town 2, but on the oral evidence given before me by Mr P that is very much in question. C expressed to Mr P that he does not like his current school, albeit that he has only been briefly there since last Monday, but importantly, C expressed to Mr P a sense of loss about his friends and therefore social situation in Town 1, and in particular the loss of his mother. C expressed in terms of a return to Town 1 that he would like that as long as someone was looking after him.

On Mr P’s evidence, taken with other evidence such as the Family Report, it seems to me that between the Mother and the maternal grandmother, it is clear enough that the Mother has stability of circumstances currently. She is in stable employment; all the evidence suggests that she is compliant with her medical regime including her medication and the supervision of her medical condition; she undertakes six-weekly reviews with her general medical practitioner and she is under the auspices of the adult mental health service in Town 1.

It is not a matter for me today to determine ultimately where C’s best interests lie. The focus of the current dispute is relatively narrow. The focus must be on what is best for C between now and the trial, with one eye to the future as to the potential outcome of the trial.

One outcome might be that C remains with the Mother in terms of an Order that C primarily live with her. That would obviously be effected in circumstances where, if he remains in Town 2 for another two months, there would be further disruption to him in circumstances where it is clear on the evidence of Mr P that C will readily reassimilate if he is returned to Town 1 now.

In my view, having regard to the considerations I am obliged to consider under s 60CC of the Family Law Act 1975 (Cth), it seems to me that C’s best interests on the narrow focus of this application, lie in his return to Town 1, to thereby re-establish his social settings, the school with which he is familiar, and his relationship with the Mother. It seems reasonable that a condition of C residing with the Mother between now and the trial be that the Mother live with her own mother, but there is nothing before me which would suggest that there is a need for a specific Order for the Mother’s time with C to be supervised. I am satisfied on the evidence of Mr P that between the Mother and the maternal grandmother, they are able to arrange their respective full-time employments with the same employer, namely the Town 1 Hospital, to assimilate the care of C and his attendance at school in circumstances where he resides in that household until the trial of the matter takes place.

In terms of C spending time with the Father, what is highlighted is the travel distance between Town 1 and Town 2, some five hours’ driving time. Again, Mr P made reference to the feature that in terms of disruption to C, it is obviously preferable that the time he spends with his Father be spent in Town 1, and the Father ultimately acknowledged that he would be able to travel to Town 1 and spend time with C in Town 1.

I therefore make the Orders as set out at the commencement of these Reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 January 2012.

Associate:

Date: 13 February 2012