Susan and Bryan met in 2001 whilst they were both cadet Police officers in Goulburn. Bryan is originally from Hornsby in North Sydney, where all of his family still live. After they completed their training at the Police Academy in Goulburn, Susan and Bryan moved back to Hornsby, where they were stationed, and they commenced living together in 2003 and then married in 2005.
The move back to Hornsby was important to Bryan as his family were deeply religious in the Roman Catholic faith, and his uncle was the Priest at the local Church where they worshipped. Susan was agnostic when it came to religion, however, she soon became deeply adherent to the Roman Catholic faith and agreed wholeheartedly that the children would be raised in the faith.
There are two (2) children of the marriage: Luke born on 10 September 2011, and; Georgia, born on 14 February 2018. Susan and Bryan separated on 29 October of 2021.
(MOTHER STOPPED WORKING)Susan stopped working for the NSW Police in late 2006 after being diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD) from working in the homicide squad. In July 2007, she was admitted to South Pacific Private Hospital, a private mental health hospital, for treatment of her PTSD. She says that she was discharged a month later and placed on a treatment program, which she has continued to follow and regularly sees a clinical psychologist to this day.
She also found strength from speaking with Bryan's uncle, the Priest, and she began to explore the more traditional orthodox religious practices of Opus Dei.
Bryan claims that Susan didn't follow her mental health treatment plans and threatened self-harm in 2014. In 2013, she commenced working part-time for Warringah Council as a Ranger whilst also receiving workers' compensation after her medical discharge from the Police.
Bryan has a history of poor impulse control, and Susan alleges he was violent towards her during their marriage. She says he was verbally violent to her, calling her names, beginning after they first cohabited. There were frequent angry outbursts from him. She also alleges that he was physically violent on two (2) occasions in 2011 and 2017. She says he lost his temper and hit her with a broom causing extensive bruising on her upper body, and when she was pregnant with Georgia, he threw a microwave oven at her and injured her leg. Bryan maintains that he only meant to throw the microwave in her direction and didn't mean to injure her.
At separation, Bryan and Susan argued about who would have to move out of the matrimonial home. On the night of separation, Susan refused to leave the matrimonial home and asked Bryan to move out instead. As the argument broke out, Bryan grabbed Susan by her hair and pushed her out the front door, locking it behind her. As he pushed her out of the front door, Susan struck her head against the door frame, leaving her with bruising and a cut on her lip. The children were inside the house at the time and witnessed their mother being dragged outside.
Susan went to a neighbour's house and the Police were called to this incident and a Provisional Apprehended Domestic Violence Order was made restraining Bryan from verbally or physically assaulting her, as well as not being able to contact her, except through legal representatives. Bryan has been charged with aggravated assault and has now been suspended from his role in the Police, pending the outcome of the charges, on full pay.
Since separation, the children have been living with each parent on an equal time basis by agreement between them both, spending 7 nights out of each fortnight with each parent, from Monday to Monday. For the week that the children live with Bryan, they remain in the former matrimonial home in Hornsby; while Susan has been renting a granny flat in nearby Roseville, close to where Luke is enrolled in year 5 at Roseville Public School and where Georgia is attending a day care nearby for 3 days per week.
Susan was always uncomfortable with the idea of equal time, however she didn't want the children not to see their father, and Bryan demanded the equal time be the arrangement after he read on the 'Fathers United' Facebook Group page he joined that the law requires that parents now had to have the children live in equal time arrangements after separation.
Susan wishes to permanently relocate her residence and the children's place of residence from Hornsby to Randwick, about 40 minutes' drive in traffic from Hornsby. She has recently been offered a senior position as a Local Council Ranger with Randwick Council.
Susan claims she would suffer serious financial and psychological detriment if she were required to remain in Hornsby, where property prices were skyrocketing after the COVID-19 pandemic. She says that she has not worked full-time since Georgia was born and feels that this has resulted in her recent bout of depression, and a sense of isolation and of 'losing herself'. Susan grew up in Coogee, where her parents both still live, which is near to Randwick.
In the four (4) months since the equal time arrangement had been in place, the children have become increasingly distressed and anxious, with Luke acting out at school and Georgia constantly unsettled.
Luke's teacher emailed both Bryan and Susan with concerns that on the weeks he comes to school when the children are living with Bryan, Luke arrives late or misses days entirely with unexplained absences, and has been to school twice and disclosed to his teacher and the school counsellor that he has had to make dinner for himself and his little sister, because 'dad falls asleep on the lounge and we can't wake him up'.
Meanwhile, Georgia is anxious and cries at changeover, which is conducted by Susan and the paternal grandmother at a café adjacent to the Church. Susan alleges that Bryan has taken up smoking marijuana again since his suspension from the Police force in October 2021. Bryan claims that he only smoked marijuana occasionally, and only in the weeks that the children were not in his care for about a 2 months after separation.
Susan wishes for Luke attend the Holy Cross College, which adheres to Opus Dei. Bryan has always worried about his uncle's religious views, characterising them as 'radical' and has researched the College, which does not allow the children to have engagement with the broader community and makes them attend religious education each Saturday for 10 hours. Bryan does not want Luke to be enrolled at the College, and instead that he attend a NSW Public High School in the Hornsby region.
Bryan filed an Initiating Application seeking interim and final property and parenting orders from the Federal Circuit and Family Court of Australia, and Susan filed her response to both applications. The matter was listed before Judicial Registrar Buttriss on 2 February 2022 and a direction was made for the appointment of an Independent Children's Lawyer (ICL) appointed to independently represent the child's interests in the proceedings.
A further direction was made by Judicial Registrar Buttriss on the first return date of the matter before the Court for the parties and the children to attend a Child Impact Report (CIR) to be interviewed by a Court Child Expert of the Court on 2 March 2021.
Bryan seeks interim orders for the children to primarily live with him, contending that Susan has proven she is unstable and can't even provide a proper roof over the children's heads, and as he is now suspended from the Police force, can take full time care of the children. He thinks Susan can only handle 1 night per week with the children in her care. He does, however, believe that the parents continue to exercise equal shared parental responsibility, and that Luke attend the local public high school in the catchment of where they currently live.
Susan is seeking that the Court order for the children to live primarily with her and relocate to Randwick, where she has found a three bedroom apartment to rent. She seeks that the children spend supervised time only with Bryan for 2 hours twice a week, with no overnight time until he commits to a drug testing regime and because she is worried about his previous drug use and anger management. She also seek that Luke commence school at Holy Cross College for year 7 next year.
At the CIC, the children told the Family Consultant that they like spending time with both their mum and dad, but that dad gets angry at them and yells at them if they ask him things while he watches his favourite television shows on Netflix and sends them to their rooms straight after dinner. They also said that they really like spending time with their paternal grandmother and their father has told them that they would rarely see him if "their mother stole them away from their real family".
The matter is listed for a two (2) hour Interim Hearing before a Senior Judicial Registrar at the Court in Parramatta at on 4 May 2022, with an Order that the parties file and serve their Case Outline Documents by 11:59pm on Sunday, 1 May 2022. The ICL has not yet given a view to the Court.
You act for the Father. The Court has asked that you also provide a Case Outline Document to the Court, along with a Minute of Order of the Orders you propose would be in the children's best interests. The Court is keen to read your submissions in accordance with the legislative pathway, and your assessment of any risk of harm and family violence for the Court to consider when making its interim determination, and is also interested in any social science theory and case law you may be able to draw its mind to.
1. ISSUES IN DISPUTE
This is an interim hearing in relation to a parenting matter where the issues in dispute are:
1.1 The father seeks for the children to primarily live with him in Hornsby and the mother seeks to relocate the children to Randwick with her.
1.2 The father seeks equal shared parental responsibility between both the parents while the mother seeks sole parental responsibility.
1.3 The time spent with each parent.
1.4 The parental responsibility of the decision regarding child's school.
2. ORDERS SOUGHT
2.1 The children shall primarily live with their father.
2.2 The parents shall have equal shared parental responsibility for the children, Luke (dob: 10/09/2011) and Georgia (dob: 14/02/2018).
2.3 The children shall spend only one night every week with their mother as it is in their best interest.
2.4 That a Parenting Order shall be passed allocating the responsibility with regard to the decision of Luke's school to the father.
3. LEGISLATIVE PATHWAY
As per Goode v Goode [2006] FamCaA 1346, the Court must follow the legislative pathway:
3.1 Considering whether it is in the best interest to spend substantial and significant time, whilst having a meaningful relationship with both parents. Furthermore, pursuant to s60CC children must at all times be protected from physical or psychological harm.
3.2 Whether the presumption of equal parental shared responsibility is valid.
3.3 Whether the children are spending substantial and significant time with both parents is practically applicable.
As per Nilssen & Kenwood [2017] FCCA 3264, the court may exercise its discretion to prevent a parent from 'exposing' a child to their religious practices if such is the child's best interest.
4. PRIMARY CONSIDERATIONS
4.1 Section 60CC(2) - The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence:
4.1.1 The mother has a history of being mentally ill and past patterns confirm that she is susceptible to mental illness. She was diagnosed with Post-traumatic Stress Disorder in July 2007 as a result of which she was admitted to South Pacific Private Hospital, a private mental health hospital, for treatment. Not only this, she recently suffered a bout of depression and claims to be feeling like 'losing herself'.
4.1.2 The father alleges that the mother's mental illness affects her capacity to be a responsible parent and poses a high risk and likelihood of the children experiencing neglect, abuse, violence or trauma as a result of the illness.
4.1.3 The father is further alleging that the mother had not sought continuous psychological assistance in relation to her previous trauma and relied (possibly still relies) heavily on a Greek Orthodox Church priest to assist her. However, he is not psycho-socially qualified to provide such assistance and the mother's mental health remains untreated.
4.1.4 The father claims that the mother threatened to self-harm in 2014 due to relying on an unqualified priest and not following her mental health treatment plans prescribed by the mental hospital.
4.1.5 Untreated mental illness can cause severe emotional, behavioural and physical health problems, unemployment, substance abuse, homelessness, suicide, and poor quality of life. The father is concerned about their children being exposed to such situations, potentially causing psychological trauma.
4.2 The benefit to the child of having a meaningful relationship with both of the child's parents:
4.2.1 It is in the children's best interest to primarily live with the father due to the mother's mental and financial instability, raising the need to protect the children from physical or psychological harm.
4.2.2 Uprooting the children from their home in Hornsby and relocating them to Randwick is not beneficial for the children. Further, being separated from their father and grandparents may affect them psychologically.
4.2.3 The father's stable income, financial capability and ability to take care of them full-time makes living with the father beneficial for the children.
4.2.4 The children will not benefit from the equal time arrangement as the mother is not fully capable of caring for them. However, considering both parents' chances to cultivate meaningful relationships with the children, it is beneficial for the children to spend one night every week with their mother.
4.2.5 The father understands the importance of equal shared parental responsibility; however, Luke's benefit is in the father's decision regarding attending local public high school.
4.2.6 It is in Luke's best interests to have access to an educational institution that allows him to have engagement with the broader community and provides a chance to choose his own religious affiliations in attaining adulthood. Luke's attending a school with a radical religious, educational system will affect his meaningful relationship with his father.
4.2.7 The local high school is also better as the travel that would be required between the father's homes and the school is short-distanced.
4.2.8 For the child's benefit, it is essential to have a Parenting Order passed in favour of the father allocating him the responsibility of choosing the appropriate school for the child.
5. ADDITIONAL CONSIDERATIONS
(a) Any views expressed by the child and any factors (such as the child's maturity or levels of understanding) that the court thinks are relevant to the weight it should give to the child's views.
· The children told the Family Consultant that they like spending time with both their mother and father.
· They also said that they really like spending time with their paternal grandmother at Hornsby.
· The children have not expressed any views of family violence to the Family Consultant.
(b) The nature of the child's relationship with Each of the child's parents; and Other persons.
· The children have been cared for by the mother and the father equally.
· The children share an emotional bond with their father's mother; their paternal grandmother. Georgia gets unsettled during changeovers between her grandmother and mother.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
· The mother failed to consult the father about her intentions to relocate to Randwick. Such decisions may be considered as long-term issues in relation to the children.
(ii) to spend time with the child; and
· The children were restricted to the mother's care for two months until the father demanded an equal time arrangement.
· Since the equal time arrangement, both the parents have been spending equal time with the children.
(iii) to communicate with the child;
· As above.
(d) The likely affect of any changes in the child's circumstances, including the likely affect on the child of any separation from:
Either of his or her parents; or
· The distance between Hornsby and Randwick is minimal and will not result in the children being separated from the mother for substantial periods of time.
Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
N/A
(e) The practical difficulty and expense of the child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and contact with both parents regularly.
· There are no practical difficulties in the children spending time with their mother. Both parties live within a reasonable distance, and the father proposes shared travel for changeovers.
· However, if the mother relocates the children to Randwick, there will be a significant impact on the children's relationship with their father as the time proposed by the mother is merely 2 hours. This will impact the children from spending substantial and significant equal time with their father.
(f) The capacity of:
Each of the child's parents; and
Any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
· There is a concern about the mother's capacity to ensure the children's best interests are met as she is dealing with mental illness and facing financial problems.
· The mother would likely benefit from mental health treatment moving forward to ensure the mother's behaviour does not impact the children.
(g) The child's maturity, sex, lifestyle and background (including lifestyle, culture and traditions) and of either of the child's parents, and any other characteristics that the court thinks are relevant.
· Georgia is a four-year-old child in the developmental stage of growth and it will benefit her to live with the father who is capable of taking care of her full-time.
(h) If the child is an Aboriginal child or a Torres Strait Islander child:
The child's right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
The likely impact any proposed parenting order under this part will have on that right.
· NA
(i) Each of the child's parents demonstrates the child's attitude and the responsibilities of parenthood.
· As above
(j) any family violence involving the child or a member of the child's family;
· There is a Provisional Apprehended Domestic Violence Order against the father, the charges are pending.
· The father does not consent to the order
· The children are not listed on the order.
(k) if a family violence order applies or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
· As above.
(ii) The circumstances in which the order was made;
· There was a disagreement between the mother and father about who would move out of their Hornsby home on separation.
(iii) any evidence admitted in proceedings for the order;
· No evidence was admitted.
(iv) any findings made by the court in, or in proceedings for, the order;
· Pending.
(v) any other relevant matter;
· The father does not consent to the order.
(l) It would be preferable to make the order that would be least likely to lead to the institution of further proceedings concerning the child.
· NA
(m) Any other factor or circumstances that the court thinks is relevant.
· NA