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…
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- AGLC
- Ainslie & Gemmell [2023] FedCFamC1F 546
- Case
- [2023] FedCFamC1F 546
- Decision Date
CaseChat Overview and Summary
Ainslie & Gemmell was a case before the Family Court of Australia, which involved a dispute over the parenting arrangements of a young child, X. The father and mother, both of whom are educated and skilled in the entertainment industry, had initially resided in Tasmania but the mother later relocated to City C. The father proposed that if the court determined that X's best interests were served by remaining with the mother in City C, he would relocate to City C himself. The court had to decide whether X's best interests were better served by residing with his mother in City C or with his father in Tasmania, and whether the mother's capacity to parent X emotionally and physically would be impacted by her own circumstances.
The court found that X's primary attachment was currently with his mother and that it was in X's best interests for his parents to have equal shared parental responsibility for his long term and important decisions. The court also found that X would benefit from establishing an attachment and bond with his father and that he had been denied the opportunity to establish meaningful relationships with his extended paternal family. The court did not consider issues of family violence to be relevant to its determination.
The court ultimately determined that it was in X's best interests to reside with his mother in City C, but that the father would have extensive and regular contact with X, including a four-night stay with him every second weekend and every second school holiday. The father was also required to contribute to the mother's costs of the proceedings.
The court found that X's primary attachment was currently with his mother and that it was in X's best interests for his parents to have equal shared parental responsibility for his long term and important decisions. The court also found that X would benefit from establishing an attachment and bond with his father and that he had been denied the opportunity to establish meaningful relationships with his extended paternal family. The court did not consider issues of family violence to be relevant to its determination.
The court ultimately determined that it was in X's best interests to reside with his mother in City C, but that the father would have extensive and regular contact with X, including a four-night stay with him every second weekend and every second school holiday. The father was also required to contribute to the mother's costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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