Question 1

Susan is an art teacher who grew up in Melbourne. She met Andrew in Wollongong in early 2014. Andrew lived in Wollongong. The two hit it off and Andrew, an IT consultant, visited Susan in Melbourne several times over that year when he was in Melbourne for work. In January 2015, Susan was offered a job as an art teacher at a school in Wollongong, which she took. She moved in with Andrew in a rented flat. They lived a busy lifestyle. Susan was a regular cannabis smoker.

On 1 October 2016, Susan gave birth to a son, Josh. She had stopped smoking cannabis when she found out she was pregnant. The family moved out of the flat after Josh was born and rented a house in Dapto.

Andrew became more heavily involved in management at his workplace and had to travel a lot. Susan was the major carer for Josh. Andrew spent time caring for Josh on weekends. Susan resumed work part time when Josh was about 18 months old. Andrew's parents, Lorraine and Bob, lived nearby and looked after Josh when Susan worked.

On 1 March this year, Susan accidentally took Andrew's mobile phone to work instead of her own and received several text messages which led her to believe that Andrew was having an affair with a work colleague, Melanie. That night, she confronted Andrew about it and he admitted that he had been having an affair for the last 6 months. Susan told Andrew that the relationship was over and Andrew moved out of the home the next day and moved in with Melanie, renting a house about 1.5 km from the former matrimonial home. The couple negotiated when Andrew would see Josh on an ad hoc basis. It was mostly for a few hours on weekends and never overnight.

All of Susan's family live in the Melbourne area. Her parents would visit several times a year and got on well with Josh. They offered Susan to come and live with them. In April, Susan was also offered a teaching job in Melbourne to start next year. She decided she wanted to return to Melbourne and live there with Josh to start school in Melbourne next year.

A month ago, Susan rang Andrew and told him of her plans. That night, Andrew came to Susan's house and knocked on the door. She let him in and he said "I'll never let you take my son away. I'm going to see a lawyer. I'm going to make sure that Josh lives with me. The law will place a boy with his father and once the court finds out about your pot smoking days, you've got no chance! By the way, I've got a key and I can come back here any time. You'd better watch yourself". Susan said, "Get out of my house". Andrew left.

She heard nothing more from Andrew until about two weeks ago when he rang to apologise for the above incident. He asked if he could have Josh for a weekend. Susan refused and hung up. Last Saturday, Lorraine (Andrew's mum) rang and asked if Josh could come to their house for a birthday party for one of Josh's cousins. Susan agreed and dropped Josh there and arranged to pick him up at 5.00 pm. When she returned to pick him up, Lorraine said "Josh isn't here, Andrew picked him up. He's safe. Andrew only wants some time with his son".

Susan went to Andrew's place, but no one answered the door. Andrew did not answer his phone. She went home to find a note from Andrew on her kitchen table. Josh's clothes and school gear were gone. The note said "I've got Josh. He's fine. I'm going to see a lawyer this week. I'll be seeking sole parental responsibility and orders that Josh lives with me. You're a druggie and your refusal to let him see me and your plans to go to Melbourne show you're a control freak. Don't try to stop me. He wants to live with me anyway and the Court will do what the child wants". Later that night, Josh rang Susan on Andrew's phone and said "I'm just with daddy. Don't worry mum. I like it here. Dad's got really cool stuff and dad's girlfriend, Melanie, is nice. I want to stay here and live with dad." Andrew then got on the phone and said "See, he wants to live with me. The court will do pretty much what the kid wants." He then hung up.

Susan comes to you for advice. She wants to start proceedings straight away. She wants Josh returned to her and an order that he live with her. She wants to know if the things that Andrew has said about the relevance of her past drug taking and about Josh living with Andrew with him getting sole parental responsibility are true. She also wants to know how the views expressed by Josh would be dealt with. She would like sole parental responsibility and to move back to Melbourne with Josh. She says "Surely the court will see that Andrew broke up the family. That must count for something. Plus, I have no family, few friends and no support in Wollongong". She also says that while Andrew has never been physically violent, she is worried about his warning to 'watch herself' and about how he will react once he hears about her seeing a lawyer. Susan wants to know what protections might be available for her if Andrew turns violent. Whatever happens, she wants to know if she can get some sort of order stopping him from coming into her house and something that stops Melanie from being able to be present if Andrew has Josh with him.

Advise Susan in relation to these issues and any other important issues you see arising from the above facts. Outline your advice with reference to relevant cases and statutory provisions. DO NOT address divorce, property, spousal maintenance or child support/maintenance issues in your answer.