Ainslie & Gemmell
[2023] FedCFamC1F 546
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ainslie & Gemmell [2023] FedCFamC1F 546
File number: HBC 928 of 2022 Judgment of: MCGUIRE J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – PARENTING – Relocation – Where the father lives in Tasmania – Where the parties resided in Tasmania – Where the mother moved to Victoria with the infant child – Where the father puts forth various proposals – Where the father expresses a preference to remain in Tasmania but is agreeable to moving to Victoria if required – Orders made for equal shared parental responsibility and spend time arrangements for the father with the child. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Champness & Hansen (2009) FLC 93-407; [2009] FamCAFC 96
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 4 and 5 April 2023 Place: Hobart Counsel for the Applicant: Mr Mead Solicitor for the Applicant: Paula Sutherland & Associates Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: Baird & McGregor ORDERS
HBC 928 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AINSLIE
Applicant
AND: MS GEMMELL
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS BY DETERMINATION THAT:
1.That the Applicant Father, Mr Ainslie (“the Father”) and the Respondent Mother Ms Gemmell (“the Mother”) have equal shared parental responsibility for the child X born 2022 in the term of a minute of orders dated 6 April 2023, exhibited to the court file marked “A”.
2.That X live with the Mother, in City C, subject to the following progression of time with the Father as outlined below.
3.That pending the Father’s relocation to City C, his visits with X occur in City C every third weekend, commencing on 17th-18th April 2023, from 11:00am to 3:00pm on the Saturday, and 9:00am to 1:00pm on the Sunday, with the Father to bear the costs for his travel and accommodation.
IT IS FURTHER ORDERED BY CONSENT
4.That after the Father’s relocation to City C, X spend time with the Father as follows:
(a)Present – 18 months of age
(i)In week 1:
A.On Monday from 7.45am until 11.45am OR 2.00pm until 5:30pm.
B.On Wednesday from 2.00pm until 5.30pm.
C.On Friday from 2.00pm until 5.30pm.
D.On Saturday from 8.00am until 12.00pm
(ii)In week 2:
A.On Monday from 7.45am until 11.45am / 2.00pm until 5:30pm.
B.On Wednesday from 2.00pm until 5.30pm
C.On Friday from 2.00pm until 5.30pm
D.On Sunday from 8.00am until 12.00pm
(b)18 months of age – 2.5 years
(i)In week 1:
A.On Wednesday from 1.00pm until 6.00pm.
B.On Friday from 1.00pm until 6.00pm.
C.On Saturday from 8.00am until 2.00pm.
(ii)In week 2:
A.On Wednesday from 1.00pm until 6.00pm.
B.On Friday from 1.00pm until 6.00pm.
C.On Sunday from 8.00am until 1.00pm.
(c)2.5 years- 3.5 years:
(i)In week 1:
A.On Wednesday from 12.00pm until 6.00pm
B.On Saturday from 4.00pm until Sunday at 9.00am
(ii)In week 2:
A.On Wednesday from 12.00pm until 6.00pm
B.On Saturday from 9.00am until 3.00pm.
C.On Sunday from 12.00pm until 6.00pm
5.That at a time agreed between the parties, X spend a week in City D starting in the Christmas holidays in 2023-2024 and each year thereafter, to be funded by the Applicant Father
6.That regardless of the provisions of any other order herein X shall spend time with the parents on special occasions as follows:
(a)At Christmas time:
(i)On Christmas Eve in 2023 with the father from 2.00pm until 6.00pm and on Christmas Day from 9.00am until 2.00pm. For the avoidance of doubt, with the mother at all other times over the Christmas period.
(ii)On Christmas Eve in 2024 with the Father from 9.00am until 2.00pm and on Christmas Day from 12.00pm until 6.00pm. For the avoidance of doubt, with the mother at all other times over the Christmas period.
(iii)On Christmas Eve in 2025 with the father from 2.00pm until 6.30pm on Christmas Eve and on Christmas Day from 9.00am until 2.30pm. For the avoidance of doubt, with the mother at all other times over the Christmas period.
(iv)At Christmas time in 2026 and each alternate year thereafter with the father from 5pm Christmas eve until 1pm Christmas Day and with the mother from 1pm Christmas Day until 1pm Boxing Day.
(v)At Christmas time in 2027 and in each alternate year thereafter with the mother from 1pm Christmas Eve until 1pm Christmas Day and with the Father from 1pm Christmas Day until 1pm Boxing Day.
(b)At Easter time as follows:
(i)On Easter Sunday in 2024 with the Father from 9.00am until 2.00pm. For the avoidance of doubt, with the mother at all other times over the Easter holiday period.
(ii)On Easter Sunday in 2025 with the father from 2.00pm until 6.00pm. For the avoidance of doubt, with the mother at all other times over the Easter holiday period.
(iii)In 2026 and each alternate year thereafter with the father from 5.00pm Easter Saturday until 1.00pm Easter Sunday and with the mother from 1.00pm Easter Sunday until 1.00pm Easter Monday.
(iv)In 2027 and each alternate year thereafter with the Mother from 5.00pm Easter Saturday until 1.00pm Easter Sunday and with the Father from 1.00pm Easter Sunday until 1.00pm Easter Monday.
(c)Birthdays
(i)On X’s birthday in 2023 and 2025 X shall spend time with the father from 9.00am until 1.00pm and with the mother from 1.00pm until 6.00pm.
(ii)On X’s birthday in 2024 and 2026 X shall spend time with the mother from 9.00am until 1.00pm and with the father from 1.00pm until 6.00pm.
(iii)On X’s birthday in 2027 and each alternate year thereafter, X shall spend time with the father from 5.00pm the night before his birthday until 12.00pm on his birthday if his birthday falls on a non-school day or until the commencement of school in the event that his birthday falls on a school day.
(iv)On X’s birthday in 2027 and each alternate year thereafter, X shall spend time with the mother from 12.00pm on his birthday if his birthday falls on a non-school day or from after school if his birthday falls on a school day until the following day at the commencement of school if a school day or until 12.00pm on a non-school day.
(v)On X’s birthday in 2028 and each alternate year thereafter, X shall spend time with the mother from 5.00pm the night before his birthday until 12.00pm on his birthday if his birthday falls on a non-school day or until the commencement of school if his birthday falls on a school day.
(vi)On X’s birthday in 2028 and each alternate year thereafter, X shall spend time with the father from 12.00pm on his birthday if his birthday falls on a non-school day or from after school if his birthday falls on a school day until the following day at the commencement of school if a school day or until 12.00pm on a non-school day.
(vii)That X spend at least 3 hours with the Father on his birthday as can be agreed between the parents, and failing agreement, between 3pm until 6pm.
(viii)That X spend at least 3 hours with the mother on her birthday as can be agreed between the parents and failing agreement between 3pm and 6pm.
(d)Father’s Day/Mother’s Day
(i)That X spend from 9am until 2pm with the Father on Father’s Day in 2023.
(ii)That X spend from 9am until 3pm with the Father on Father’s Day in 2024.
(iii)That X spend from 9am until 5pm with the Father on Father’s day in 2025 and in each alternate year thereafter.
(iv)That X spend time with the Mother each Mother’s Day from 9am until 5pm.
7.Such further or other time as may be agreed between the parties.
8.That the Applicant Father be given first refusal for any care of X, additional to agreed ordinary time.
Changeover
9.That for the purpose of changeover in City C, the parents shall utilise the City C Police Station or such other agreed location including X’s daycare, early learning centre or school.
Communication
10.That the parents shall communicate via the parenting App, ‘Our Family Wizard’ (“the app”) and use that app to convey the following information:
(a)their understanding of any medication prescribed, or medical treatment or psychological therapy arranged for X and any changes of that;
(b)any changes to scheduled time;
(c)pick up/drop off arrangements at X’s day-care
(d)will note any doctor or other professional appointments made by or on behalf of that parent for X, regardless of whether they will occur in that parents time with X or not;
(e)any other significant matters relating to the care and welfare of X, including milestones and ‘leaps’; and
(f)neither parent shall criticise denigrate or abuse the other via the app.
11.THAT each party is to telephone the other as soon as practicable upon the happening of any of the following:
(a)X becoming seriously ill;
(b)X becoming hospitalized; or
(c)X being involved in an accident.
12.THAT each parent provide such consents and authorities to allow the provision to the other parent of any medical report or reports in relation to X as required by the medical practitioner or practitioners.
Education and authorities
13.That the Father be immediately listed as a secondary contact at X’s day-care centre, medical practitioners and any other facilities that X attends.
14.THAT each party provide such requisite consents and/or authorities required by the school of X to enable each parent to receive report or reports, school photographs or any other notice or notices relating to the X and to permit both parents to attend the school of X or the purpose of attending special events involving X and /or to speak to the teachers of X concerning the school performance of X.
15.That the parents are at liberty to provide a copy of these Orders to X’s school.
16.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Ainslie & Gemmell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child, X, born 2022, so X is an infant, not yet one year of age. The applicant is the father, and the respondent is the mother.
The father seeks orders, if I can summarise them, where he delegates the primary care of X to the mother, but effectively, he requires the mother and X to reside in Tasmania as his first preference, whereupon he proposes a regime – to his credit, a conservative and child-focused regime – of developing time with X, up to and including an equal shared time regime, but not until the child is of eight years.
The mother’s position is where, in 2022 the mother left Tasmania with the then very much infant X and relocated to her historical hometown of City C. The matter came before a Senior Judicial Registrar whereupon orders were made in circumstances, I expect given the age of the child, where the mother was not forced to return with the child to Tasmania but an early trial was given, and that is the desired process of the Court dealing with infants and relocation. The mother’s position is that she be permitted to, as the delegated primary parent, remain living in her preferred location of City C with X, and she proposes an equally altruistic, child-focused and, in some senses, generous form of time for the child given the vagaries of distance, logistics and the child’s age.
The interesting factor in this case which distinguishes it from many that come before this Court of this nature, is not the fact that we have two good parents. That is not unusual in a relocation matter like this. It is that the father puts, initially, two further proposals in the alternative, but effectively one, and that is, and this is significant, the father says against his preference, that should the Court be of the view that X’s best interests are served by remaining with his mother in City C, then he will move to City C. I did not take that as an idle statement. I did not take it as a throw-away line. I took it as an objective, child-focused statement by a mature father keen to be involved in the parenting of his child, and to that, it is not determinative of the orders that I am going to make, but I simply note to the father’s credit, he has considered that and it was incredibly difficult, as will become apparent from these reasons.
BACKGROUND
The background of the matter, so far as I can decipher, is that the father is 39 years of age and the mother is 34 years of age. They are both tertiary qualified. Both work as educators, and then in their skills and talents as entertainers. They met in Melbourne, significantly. They then chose to reside in Tasmania, and brought young X into the world last year. The mother has since relocated, as I said, to City C. She continues in her career in the entertainment industry. The father does that in Tasmania. They are skilled, they are resourceful, they are intelligent and they are mature parents.
The father has, pursuant to the interim orders of the Senior Judicial Registrar, maintained such contact as he can with young X by travelling to City C, and the mother has travelled to Tasmania for the purposes of giving some frequency to that relationship, despite the difficulties of expense and logistics, again that is to the great credit of the parties, albeit sanctioned by court orders. That is the relevant background.
The issues, as Mr Trezise has pointed out and as I will say a couple of times in these reasons, is not one of relocation. There is no such thing as a relocation case. That is a misnomer. This Court is charged with determining the parenting and living arrangements for a child, with the focus on the child’s best interests, whatever they are. It is almost a coincidence of fact that in a case such as this, an element of relocation brings into particular consideration. But it is not, as colloquially called a relocation case, it is a case about the best interests of X and that is my job.
The issues are whether X’s best interests are served better by residing with his mother in City C, or on the father’s first preference, by residing with his mother in Tasmania, which would provide frequency, flexibility and spontaneity to the relationship, which would then avoid the issues of expense, travel, logistics and less frequency in time. A further issue on the mother’s behalf is, as the delegated parent, where the Constitution gives her, prima facie, a right of freedom of movement, within Australia at least, subject to the child’s best interests, is as that delegated primary parent, the impact, if any, on her capacity to parent young X emotionally as well as physically given her own circumstances. There is a conflict of those issues in any matter such as this.
EVIDENCE
The evidence on behalf of the father was an affidavit by the father himself. The father gave evidence and was cross-examined. To his great credit, perhaps with little time for him to understand the circumstances, the father did not pursue issues of family violence, where a focus was very much on X’s best interests moving forward. The mother took a similar tact in respect of that issue.
The father gave his evidence in an articulate, child-focused, informed and considered manner, and my observations of the father are, irresistibly, that he presents as a dedicated keen father, and one who will offer himself as a considerable role model going forward to his young son.
He was a very fine witness. He listened to the questions, he answered them honestly, and he was able to do so with a focus on his child’s best interests.
Similarly, the mother gave evidence today. I observed her to have similar traits as to the father. She is mature, she is rational, she was articulate and she was child-focused. As an exercise in considering the demeanour of witnesses I put a surprise proposition to her to elicit her response, which she did with understandable difficulty, but ultimately with a focus on her child’s best interests, to her credit. I should say, and it goes without saying in this matter, given what I have said about the parties, this is not a matter that brings some of the difficulties that relocation matters do.
The situation is, if I determine that X lives in City C the father will relocate himself. I have no evidence of any commitments otherwise, other than his preference to live in Tasmania. His extended family are here. He is not a teenager, he is a man of some resources, maturity and from what I have seen and read, a cosmopolitan young gentleman and he has said that he will move to City C. Similarly, the mother has stated, I expect with some difficulty, having been confronted with this situation where she is the delegated primary carer of this child and where she has a preference to live in Victoria, if I determine that X’s best interests are for the child to be in Tasmania, then she will move back to Tasmania. That is to the credit of both of the parties. As I have said, the mother, equally to the father, was a credible, honest and very impressive witness.
RELEVANT LAW
I think it is Mr Trezise who may have quoted me, but for the benefit of the parties who may have heard this I want to repeat it, that matters involving the relocation of a child are amongst the more difficult of parenting matters that come before these Courts. Where commonly a parenting dispute can be resolved with a consideration along the grey areas of whether a child might spend three nights a week with a parent, or four nights a week, or every second weekend, or three weekends out of four, those finites are not available when there is an element of relocation. To the contrary, issues such as distance, travel, communication and fundamental changes in a child’s and parent’s relationships come to the fore that are not prominent in a lot of parenting cases.
Notions such as equal time and substantial and significant time, which attract great interest in a number of parenting cases, are, for a lot of practical reasons, not available to the Courts. The issues are very much back and white. Should the child live in Tasmania? Should the child live in Victoria? Normally, the abilities of the Court to work around the edges of those, are not available to us in relocation cases. As I believe Mr Trezise said, if a child is permitted to relocate, then it would be entirely understandable for the remaining parent to have a significant and substantial sense of loss. Similarly, if a relocation is not permitted and in a case such as this, it is the unchallenged primary parent obliging that person as an adult to live in a place and situation other than in his or her preference, that parent would be understandably aggrieved.
This brings further issues to the fore, such as issues of resentment and blame. It creates difficulties in the future cooperative and communicative parenting arrangements. If a child is permitted to relocate, then it necessarily changes the nature of the relationship for that child with the remaining parent, for instance, the ability to spend time frequently and spontaneously with flexibility are lost. The orders become more structured. Issues of logistics, travel and expense come to the fore that might not otherwise be prevalent.
As I have indicated, the interests of X are, by reason of the Family Law Act 1975 (Cth) (“the Act”) at section 60CA, my paramount consideration. I do consider the positions of the parents, but my focus is on young X’s best interests. There is no specific reference in the Act to relocation. The word does not get a mention in the Act. Rather, the Court in all parenting matters is mandated to determine orders which are in the best interests of the child and reasonably practicable in their operation.
I referred counsel, but also the parties, to the well-known decision of the High Court of Australia in MRR v GR [2010] 240 CLR 461. It follows that the relocation of a child is neither prohibited by the legislation, nor is there a presumption against it. A proposal to relocate a child permeates the numerous considerations that the Court is required to reference in respect of the parties’ proposals and the probative evidence before the Court in, ultimately, arriving at orders which are on balance in the best interests of X.
In determining those best interests, the Court is mandated to reference all of the factors set out in section 60CC of the Act at subsections (2) and (3) against the framework of the legislation, or the objects and principles of the legislation, set out in 60B of the Act. For the benefit of the parties, I will read into these reasons the objects and principles of the legislation, because they are relevant. Section 60B of the Act at subsection (1) provides the following:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subparagraph (2) of the Act provides the principles underlying those objects that I have just read into these reasons as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I just dwell there for a moment. As I may have said during the taking of the evidence, nowhere in the Act does it state that parents have rights. The word ‘right’ gets frequent mention in the legislation, but it always applies to the child. The child has the rights, the parents have the responsibilities. It is an important understanding. There is a presumption in the Act at section 61DA that the parents will have equal shared parental responsibility for their children. That is a presumption that it is in the best interests of X, for his mum and his dad to equally attend to the important factors and decisions in his life. It is an important presumption because my consideration and what I ultimately decide stem from that.
The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been child abuse or family violence, or alternatively the presumption may be rebutted by evidence satisfying me that it would not be in X’s best interests for his parents to exercise equal shared parental responsibility. If I dwell at that stage, significantly, given your dispute and given some of the material in your affidavits, which I will allude to later, each of you, to your credit, acknowledge the benefits to young X of both of you being involved in the important matters that come with parental responsibility, which for your benefit, is defined in the Act as:
All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Again, it does not mention rights, it mentions responsibilities. That responsibility would normally manifest in making long-term important decisions for children, such as issues of education, religion, medical procedure and the like; not to be confused with the more mundane day-to-day decisions that parents habitually make for their children, such as do not eat that for breakfast and go to bed at a certain time. Now, as I have said, to your credit, each of you asked for an order for parental responsibility, and for what it is worth, I think that is entirely appropriate.
What flows from such an order when I make it, is that the Court is mandated to enter into a course of statutory and intellectual consideration in respect of what regime of parenting is in X’s best interests. Firstly, I am to consider whether it is in X’s best interests and reasonably practicable for the child to live in an equal time arrangement between the parents. Now, whilst the father’s application takes us some way down the track, about seven or eight years into the future, to his credit, he delegates that responsibility still to the mother and does not pursue, at least in the short term, a regime of equal time, entirely appropriate given the circumstances of the child, the child’s age and the developing relationship as separated parents between the two of you. But that is for the Court to consider, in any event.
Matters of practicability also come to the fore where currently the child lives in another State than the father. That might be something to consider in the future. If the Court is of the view that either the child’s best interests are not served by an equal time regime and/or such is not reasonably practicable, then I am obliged to move to a consideration of whether X spending substantial and significant time with each of his parents is both in his best interests and reasonably practicable. For your benefit, substantial and significant time is defined in the Act as time between a parent and a child which has the parent involved in a child’s daily routine and spending time on occasions and at events that are of particular significance to the child, and where the parent will spend time with the child on both weekdays and weekends and school time and holidays. Again, issues of the child’s age and practicability come to the fore there.
Matters coming before these Courts involving a proposed relocation of a child tend to highlight the difficulties for the Court’s consideration, where factors such as distance, geography and logistics come to the fore, as well as the mandated considerations of equal time and substantial and significant time. Nevertheless, that mandatory pathway of consideration remains. Superior Courts have over a number of years, against the background where the Act itself does not mention the concept of relocation, have nevertheless developed a set of principles, or guidelines, to assist trial judges such as myself in making the incredibly difficult determinations in respect of the best interests of children where a relocation is a part of the process. Those principles have survived many amendments to the Act and can perhaps be summarised as follows.
(1)Firstly, the child’s best interests remain the paramount, but not the sole consideration for the Court, and such interests must be considered within the context of section 65DAA of the Act, being reasonable practicability, which I have just referred you to.
(2)Secondly, a parent wishing to relocate does not need to demonstrate ‘compelling reasons’ to relocate, but must show reason which attend, ultimately, to the best interests of the child. But, importantly, they are not obliged to come to this Court with absolutely compelling reasons.
(3)Thirdly, the trial judge must consider each of the parties’ proposals, together with their advantages and disadvantages, but the Court may also formulate its own determination outside of the parties’ proposals. Now, as I have indicated to you earlier, I perhaps hit the mother between the eyes with a proposal of my own, which did not sit with the proposals of either of you. I am able to do that. My job is not to simply pick and choose between the proposals you offer. My job is to make orders which I consider, ultimately, are in X’s best interests and there is a big difference.
(4)Fourthly, neither party carries an onus of proof to convince the Court either for or against a proposed relocation. It is the child’s best interests that are in my consideration. You do not carry an onus of proof.
(5)Finally, the child’s best interests must be weighed and balanced against the right of a proposed relocating parent’s freedom of movement, but that such, ultimately, must defer to the child’s best interests.
Those are, effectively, the informal principles or guidelines that guide my determination.
Given that the evidence is completed, I will reference that evidence to the particular considerations under section 60CC(2) and (3) of the Act. There are two primary considerations, and the first primary consideration is that the Court should make orders which benefit the child in having a meaningful relationship with both of the child’s parents. Unsurprisingly, that consideration sits at the very crux of the father’s application. This is a situation where, by reason of the child’s age, the separation of the parties and the orders of the Senior Judicial Registrar, that it is irresistible that young X’s sense of attachment and support and dependency rests with his mother.
For those same reasons, and without any form of fault or blame, it is equally irresistible that X has not had the opportunity to develop those same attachments and bonds with his father, and the orders that his father seeks are firmly grounded on giving X the opportunity to develop those relationships with his father. The father argues, taking his first preference, that a continued situation of geographical distance between X and the father will not lend towards X developing those relationships and bonds, and that to develop those relationships requires a high degree of frequency and close proximity between the child and the parent.
Whilst this consideration sits firmly as the crux of the father’s argument, he should not be confused into thinking that, that consideration in itself is determinative of the result as to the best interests for young X. It is simply one of the matters to be taken into account. Mr Mead has referred me to a well-known decision of the Full Court of the Family Court in Champness & Hansen[1], which noted as much.
[1] Champness & Hansen (2009) FLC 93-407.
The second primary consideration is that the Court should make orders where necessary to protect the child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. Suffice to say that the affidavit material of each of these parties, in my view, is unnecessarily focused on issues of family violence. To do so was, sadly, not conducive to a future cooperative and communicative relationship between the parents. Some of the asserted particulars of family violence do not even come close to fitting into what is, in any event, a very broad definition of family violence in the Act, but are completely illogically put to this Court, where the other party reads them and reacts accordingly, in circumstances where the father delegates the primary care of the child to the mother; and, similarly, where the mother seeks a suite of orders which would have this child, ultimately, at some stage, spending blocks of seven days and nights with the father.
It is illogical even to attempt to reconcile how two parents can ask for orders of those types, and then come to this Court and argue issues of family violence against the other parent. This child is not yet one year of age, and you could not reconcile a situation of coming here and saying, well, she can look after my child, but here is all the family violence things that are relevant. They do not sit together, and that goes for both parents. Suffice for me to say that issues of family violence, such as they might have been, in my view were situational and circumstantial for the uncoupling of a relationship which had not perhaps had time to develop between the adults themselves, and now that situation is rectified by the parents’ separation, if not the putting of distance between them.
Where such violence, such as it was, was situational, I am not of the view that either of these parents suffers the disposition towards violence that we often see in these courts. I am to take into account at subsection (3)(a) of section 60CC of the Act the views expressed by the child or any preferences of the child. This child is less than a year old. The child is not able to articulate preferences as to his living and parenting arrangements. I am to consider the nature of the relationship of the child with each of their parents and other persons, including grandparents and any other relatives of the child. Again, I have already alluded to this consideration. It is an important one.
The nature of the relationship of X with his mother is that she is solely his source of dependency, attachment and support. To the contrary, by reasons of the father and X being separated, that relationship has not yet had a chance to develop. The relocation of X ordinarily, given the father’s first preference, would entrench that situation where X would grow up to know that his mother is effectively his sole sense of support and attachment, whereas he would be effectively a visitor to his father, and the nature of the relationship between child and each of the parents would be significantly different. That should be avoided if at all possible.
I am to consider the extent to which each of the children’s parents has taken, or failed to take the opportunity to participate in the child’s life effectively. The mother mounts some criticism of the father. To my mind, such criticism is unwarranted and perhaps better seen as an affidavit filler rather than the true understanding that I saw of the mother in the witness box, as to the need for her child to have a relationship with both of the parents. It is a fact that, I think I am correct in saying, this is the first child of either of these parents. Parenting is something that does not automatically come the day after the child is born. There is an aspect of learning and practice, you make mistakes and learn from them, trial and error.
The mother has developed those skills, if only by reason of her having possession of the child and unilaterally removing herself and the child from Tasmania to Victoria. To put it candidly, the father has not had the opportunity yet to show everyone in this Court his capacity as a parent in the physical sense. I have no difficulty with his emotional capacity to care for his child. But that can only come when he is given the opportunity to parent his child. I am to consider the likely effect of any changes in the child’s circumstances, including the effect on the child of any separation from either of the parents, other child, other person, grandparent or other relative with whom the child has been living.
It is an important part of the father’s case that the mother’s primary position versus the father’s primary position would see the child separated from not just his father for significant periods of time, but also from his extended paternal family. The social scientists are unanimous, prima facie, it is of significant and substantial benefit to a child to have a developed, meaningful and successful relationship with extended families on both sides. The hierarchy of families is important to the development of a child, whether that be great grandparents, grandparents, cousins or whatever. The change proposed by the father, which would bring back X to Tasmania, would attend to those difficulties, but would in itself, present further difficulties for the child, particularly in respect of the capacity of the unchallenged primary parent, which I will allude to in a moment.
I am to consider at subsection (3)(e) of section 60CC of the Act the practical difficulty and expense of the child spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. As already said, Tasmania is a state which brings into play the logistics of transport and expenses that go with that. It is a significant consideration as well, as I have said, removing the flexibility and spontaneity of a relationship between a parent and a child. Importantly, I am to consider at subsection (3)(f) the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
As far as I understand it, this subsection might lay at the very crux of the mother’s argument. The mother is the unchallenged, delegated, primary parent of this child. Consideration for the Court is her contentment and her happiness, perhaps extending to issues of mental health welfare, where she is the primary parent of an infant child and the possible, if not probable, impacts on a child developing through childhood, adolescence and into adulthood of living with a primary parent who is unhappy in her unfulfillment and her unfulfilled ambitions and preferences. It is a consideration that is very much to the forefront of my determination here. They are the relevant matters under section 60CC of the Act.
FINDINGS AND CONCLUSIONS
Given the evidence that I have had the benefit of hearing and, to some extent, reading in the affidavits, I am able to make the following findings.
I am satisfied on the evidence that X’s primary attachment currently is with his mother.
I am easily satisfied, given the entirely proper concessions of the father that X’s best interests are served by remaining in the primary care of the mother.
I am equally easily satisfied that it is in X’s best interests for his parents to have equal shared parental responsibility for X’s long term and important decisions, that is, X will very much benefit from the positive input of each of the parents that they can provide, by reason of their intelligence, education, maturity and commitment to X’s best interests.
I am satisfied on the evidence that by reason of age and circumstance, X does not yet have a formed, developed or meaningful relationship with his father. I take on board the material in the affidavit obviously readily conceded by the mother, that during the visits to City C and the visits to Tasmania, that X has had an enjoyable time with his father, but I cannot accept on the evidence and the circumstances that, that relationship has developed to the stage of attachment or bond, let alone anywhere near the state of the relationship that X has with his mother. I am persuaded however, that X would and will benefit by establishing such an attachment with his father, and importantly there will be a benefit accruing to the child to establish those relationships, where I see the father, as I have already said, as presenting as a fine role model for his son into the future.
Similarly, I am satisfied that X has unfortunately been denied the opportunity to establish meaningful relationships with his extended paternal family, where such relationships are incredibly important for his moves through childhood, adolescence and into adulthood. Whilst each of the parties, which seems to be sadly inevitable in parenting cases in these Courts in recent years, provide affidavits replete with particulars under the headings of “family violence”, I do not consider such issues to be relevant to my determination. Firstly, it is clear that neither of these fundamentally good parents are of violent disposition or temperament. Rather, they have experienced, in my view, situational and circumstantial difficulties in both coupling and uncoupling, for want of better terms, which is not uncommon and it is entirely unfortunate that social media or other media highlight issues of family violence such that parties feel obliged to bring those issues, often with embellishment and sometimes with exaggeration, to these courts.
For the benefit of the parties, in this job judges such as myself do deal with the most tragic of issues of family violence. The responses from and for the children are sad and unfortunate, and for your great benefit and your son’s benefit, you do not come into that category. But I do say, for the future of young X, that you would be wise to put aside issues of family violence in your co-parenting and communicating, where you will have difficulties. But you should resolve those difficulties with respect and civility and in the best interests of your son. Having said that, I do accept fundamentally that a factor and a contributor to the mother unilaterally leaving Tasmania, if that is the right term, was her understanding of the situation and circumstances that confronted her at the time of separation. Whether that can be categorised as family violence is another matter. But I do accept and understand the circumstances which contributed to her leaving with X at that particular time.
As I have already indicated, it is illogical and impossible to reconcile what I have read in the affidavits in respect of the allegations each of you make against the other, and the positions that you take in respect of the orders that you seek in respect of each other. I need not dwell on that any further.
I am satisfied on the evidence that the mother has a deep and considered preference to reside in City C. I am satisfied that she has support in City C, perhaps embellished in her evidence in her affidavit, but nevertheless still the important support of her mother and where, as I have indicated to Counsel in closing addresses, support should not be considered per se, but the nature, context, type, circumstances of the support and whether it be physical, emotional, family or non-family, are all important factors.
I am satisfied generally whilst the mother is also a cosmopolitan, mature, well-travelled and skilled person, issues of support are important to her, with an emphasis on the emotional support that can come from a mother, grandmother and the like, and I am satisfied that the mother is legitimate in her claim that she craves that support in circumstances where she is the first-time mother of a now less than one year old child. Whilst I expect that the mother could ‘cope’ if required to live in Tasmania where there are historical supports, I find that she would do so unhappily and with the consequent grieving of the loss of her preferences and ambitions, and there would necessarily, in my view, be a flow on to her capacity as a parent, a flow on of her attitude to the father, which irresistibly would become one of resentment and unhappiness and perhaps blame.
As I said earlier, it may be that the mother would blame me for a couple of days if she was required to return to Tasmania, but I fully expect that that blame would transfer to the father. It is an important consideration where vicariously this child could be growing up in a household where the primary parent is unhappy, lacking contentment and the emotional considerations for the child would be significant. The father shows his commitment to X by providing an option, not his preference, but an option that he would relocate himself to City C. Judges are often confronted with a spontaneous response from a parent in a witness box along the lines of, “Well, if the child goes to live in X, then I will go and live in X.” Those responses are almost always ill-considered, ill-informed, impractical and never likely to take place. That is not the situation with the father.
The father came to this Court with that proposal. It was not a spontaneous response. Given my observations of the father as a person, which I have already alluded to, I expect that option is put in a considered and informed basis as to whether or not he could realistically make that occur, and given that it is put to the Court now, I accept it at face value. He is to be commended for doing so. In summary, I find both of these parents to be committed to X and his best interests, where those commitments are challenged by each of their own lifestyle, preferences and ambitions. That is not a criticism, it is an observation and it is an incredibly difficult position that each of you find yourself in.
Having a child compromises in many ways, not just with a relocation case. The advent of a child compromises and challenges preferences and ambitions in respect of lifestyle, work and the like. But where there is a relocation anticipated of a child, then it is manifested quite clearly as a challenge and a conflict between preferences and child’s best interests. I am fully aware of that. I find, if I have not already done so, that X has much to gain from a full and beneficial relationship with each of his parents. Whilst a number of options have been put for my consideration, I am, of course, not bound simply to pick between the options put by the parties, but must make orders which, on balance, attend to X’s best interests and where I can myself formulate proposals towards that ultimate end.
To this end, I did raise a proposal of a form of moratorium on the mother moving to City C so as to allow X to establish a relationship with his father and the extended paternal family. This proposal was clearly not one that the mother had considered prior to her entering the witness box and she was requested to respond to some forthright questioning by me and it is not one that she found to be attractive and, hence, might bring with it some of the issues I have raised as to the unfulfillment and lack of achievement of ambitions and preferences of the unhappy parent, if I can say that, as I mentioned above in these reasons.
There are clear advantages in the father’s proposal and, by extension, the option raised by me. Most notably, X will be given the opportunity for frequency, flexibility, spontaneity in his relationships and contact with his father and his extended paternal family. That would inevitably be a positive for the child. It would give him the opportunity to establish at an early time in his life the attachments and bonds that are of assistance to him moving through his childhood and his adolescence. The disadvantages of the father’s proposal would prominently be, in all likelihood, an unhappy delegated primary parent denied her ambition and her chosen support network and where she is, as I say, the delegated primary carer for X with a prima facie right of freedom of movement in this country.
An impact on X, at least emotionally, is a real and plausible possibility of such a circumstance with an expectation of a negative impact on the parenting relationship between father and mother in what are otherwise two fundamentally excellent parents. The advantages and disadvantages of each proposal are mirrored in the other. Obviously the mother’s proposal may cause some logistical and financial cost issues in respect of maintaining a contact relationship between X and the father, but must be seen within the context of the father’s alternative proposal, which I have said I accept at face value, that he would consider moving to City C which would alleviate those logistical and cost issues. In conclusion, I put significant weight on the following:
(1)The mother is the delegated primary carer of young X.
(2)The mother’s personal contentment is necessarily directly related to her parenting capacity and, hence, to X’s best interests.
(3)The mother prima facie has a constitutional freedom of movement within Australia where perhaps within the overarching consideration of the child’s best interests might achieve some greater consideration or weight given her circumstances again as the delegated primary parent. The father says, and I accept, that he would move to City C. That is a significant statement from the father. I repeat, I do not take it as a throw-away line. I take it as not his preference. I take it as an informed and considered statement which would obviously bring difficulties for not just the father but for his extended family. But he offers that proposal to the Court and, as I have said, I accept it at face value as considered and informed, and such would, of course, attend to the major deficits that I have noted in the mother’s case, being the need for frequency of contact for a young child with both of the parents. That would attend to that major issue.
For all of those reasons, I am persuaded that X’s best interests are served by living with his mother in City C and I will order accordingly.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 5 April 2023
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