CARVER & SANSFORD - [2020] FCCA 863

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARVER & SANSFORD

[2020] FCCA 863

Catchwords:
FAMILY LAW – Parenting – parental responsibility - relocation – family violence – where both parents have psychological vulnerabilities – whether the mother ought to be permitted to relocate to Adelaide with the parties’ four-year-old son.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61B, 61DA, 64B, 65DAA

Cases cited:

Cowley v Mendoza [2010] FamCA 597

Heath & Hemming (No.2) [2011] FamCA 749

Mazorski v Albright [2007] FamCA 520

Tait & Dinsmore [2007] FamCA 1383

Taylor v Barker [2007] FamCA 1246

Applicant:

MS CARVER

Respondent:

MR SANSFORD

File Number:

DGC 595 of 2018

Judgment of:

Judge Small

Hearing date:

13 November 2019

Date of Last Submission:

16 November 2019

Delivered at:

Melbourne

Delivered on:

20 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Testart

Solicitors for the Applicant:

Testart Family Lawyers

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Davine Shanahan Fitzpatrick and Associates

Counsel for the Independent Children's Lawyer:

Ms Hamilton

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders in relation to the child X born in 2016 (“the child”) are hereby discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Until 31 December 2021, the mother is hereby restrained by injunction from relocating the child’s place of residence more than 100 kilometres from the father’s home, save that if the father should move more than 100 kilometres from the mother, the mother shall not be required to move within 100 kilometres of the father’s new place of residence.
From 1 January 2022, the mother shall be permitted to relocate the child’s place of residence to Adelaide, South Australia, subject to:
(a)her providing to the father documentary evidence of the following facts by 30 November 2021:
i.That the mother has been accepted as a student in a course of study at a university in Adelaide for the 2022 academic year, and has completed all preliminary enrolment tasks required to be completed by 30 November 2021;
ii.That the child is enrolled in a primary school in the metropolitan area of Adelaide to begin on the first day of the 2022 school year;
iii.That the mother has signed a lease covering the whole of the 2022 school year for a house or apartment containing at least two bedrooms in the metropolitan area of Adelaide;
and
(b)Her compliance with her obligations under paragraph 7 hereof such that no contravention applications have been proven against her by 30 November 2021.
If the mother does not comply with the provisions of paragraph (5) hereof, then the provisions of paragraph (4), save for the words “Until 31 December 2021”, shall continue indefinitely.
Until 31 December 2021, the child shall spend time with the father as follows:
(a)During school/kindergarten terms, on alternate weekends from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, or Monday if the Monday is a public holiday, with such weekends…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CARVER & SANSFORD

Details

AGLC: Carver and Sansford [2020] FCCA 863
Case: [2020] FCCA 863
Decision Date: 20 April 2020

CaseChat Overview and Summary

This case involved an application by the mother, Ms Carver, for permission to relocate with the parties' four-year-old son, X, to Adelaide. The father, Mr Sansford, opposed this relocation. Both parents presented evidence of psychological vulnerabilities, and the court was required to consider allegations of family violence made by both parties against each other.

The central legal issues before the court were whether the mother ought to be permitted to relocate with the child to Adelaide, and how the child's best interests, as defined by the primary considerations of the benefit of a meaningful relationship with both parents and the need to protect the child from harm, should be balanced in this context. The court also had to consider the impact of the parents' respective psychological vulnerabilities and the allegations of family violence on the child's welfare.

The court applied the principles outlined in section 60CC(2) of the *Family Law Act 1975* (Cth), focusing on the benefit of a meaningful relationship with both parents and the need to protect the child from harm. It considered the qualitative nature of a "meaningful relationship," emphasising the quality of time spent rather than the quantity. The court noted that allegations of family violence by both parents, if true, would negatively impact their ability to provide a positive role model for the child. The mother's evidence of the child's distress and nightmares following time with the father, and the subsequent involvement of a counselling service and police, were significant factors in the court's assessment of risk.

The court ordered that previous parenting orders be discharged and that the parents have equal shared parental responsibility. The child was to live with the mother. Crucially, the mother was restrained from relocating the child more than 100 kilometres from the father's home until 31 December 2021. From 1 January 2022, relocation to Adelaide was permitted, subject to the mother providing documentary evidence by 30 November 2021 that she had been accepted into a university course in Adelaide, the child was enrolled in a metropolitan Adelaide primary school, and she had secured a suitable lease. Failure to meet these conditions would result in the relocation restriction continuing indefinitely. The orders also detailed specific arrangements for the child's time with the father, both before and after the potential relocation, and included provisions for communication, notification of illness, and parental involvement in the child's schooling.

Orders

Orders of the court

All previous parenting orders in relation to the child X born in 2016 (“the child”) are hereby discharged.

The parents shall have equal shared parental responsibility for the child.

The child shall live with the mother.

Until 31 December 2021, the mother is hereby restrained by injunction from relocating the child’s place of residence more than 100 kilometres from the father’s home, save that if the father should move more than 100 kilometres from the mother, the mother shall not be required to move within 100 kilometres of the father’s new place of residence.

From 1 January 2022, the mother shall be permitted to relocate the child’s place of residence to Adelaide, South Australia, subject to:

(a) her providing to the father documentary evidence of the following facts by 30 November 2021:

i. That the mother has been accepted as a student in a course of study at a university in Adelaide for the 2022 academic year, and has completed all preliminary enrolment tasks required to be completed by 30 November 2021;

ii.That the child is enrolled in a primary school in the metropolitan area of Adelaide to begin on the first day of the 2022 school year;

iii.That the mother has signed a lease covering the whole of the 2022 school year for a house or apartment containing at least two bedrooms in the metropolitan area of Adelaide;

and

(b) Her compliance with her obligations under paragraph 7 hereof such that no contravention applications have been proven against her by 30 November 2021.

If the mother does not comply with the provisions of paragraph (5) hereof, then the provisions of paragraph (4), save for the words “Until 31 December 2021”, shall continue indefinitely.

Until 31 December 2021, the child shall spend time with the father as follows:

(a) During school/kindergarten terms, on alternate weekends from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, or Monday if the Monday is a public holiday, with such weekends to coincide, as far as is reasonably practicable, with the father’s time with the child’s siblings B and C;

(b) During school/kindergarten term holidays in 2020 on alternate weekends from 5:00 p.m. on Thursday to 5:00 p.m. on Tuesday following the pattern set by paragraph (7)(a) hereof;

(c) For one week in the school/kindergarten term holidays in 2021 by agreement, and failing agreement from 5:00 p.m. on the last day of school to 5:00 p.m. on the day one week later;

(d) During the long summer holidays in 2020-2021 for two periods of one week by agreement between the parties, and failing agreement from 6:00 p.m. on Boxing Day 2020 to 6:00 p.m. on 2 January 2021, and from 6:00 p.m. on 16 January to 6:00 p.m. on 23 January 2021;

(e) From 5:00 p.m. on the day before Father’s Day each year to 5:00p.m. on Fathers’ Day, and if Mothers’ Day falls on a weekend when the child would usually be spending time with the father pursuant to these Orders, then the father’s time shall conclude at 5:00 on the day before Mothers’ Day;

(f) At other times by agreement between the parties in writing.

During the long summer holidays in 2021-2022, the child shall spend time with the father:

i. If the mother will be moving to Adelaide in January 2022, from 6:00 p.m. on the day after the last day of the school year to 6:00p.m. on New Year’s Eve 2021, and where this sub-paragraph conflicts with other orders for Christmas time, the provisions of this sub-paragraph shall take precedence;

ii.If the mother will be moving to Adelaide in January 2022, by telephone, Skype, Zoom, FaceTime or other electronic means between 6:00 p.m. and 6:30 p.m. on each Tuesday and Saturday in January 2022, with the father to place the call to a number or electronic address provided by the mother, and the mother to ensure that the child has access to a fully-charged telephone, tablet or computer, that he is available to take the call, and that he is afforded privacy during the call;

iii.If the mother will not be moving to Adelaide in 2022, for two periods of no more than ten days by agreement between the parties, and failing agreement, from 6:00 p.m. on New Year’s Eve 2021 to 6:00 p.m. on 10 January 2022 and from 6:00 p.m. on 20 January to 6:00 p.m. on the Monday prior to the commencement of the 2022 school year;

(b) At other times by agreement between the parties in writing.

The child shall otherwise spend time with the father in the long summer holidays:

(a) in 2022-2023 for one period of two weeks by agreement between the parties and failing agreement from 6:00 p.m. on New Year’s Day to 6:00 p.m. on 15 January 2023;

(b) from and including 2023-2024 for half of each of the long summer holidays by agreement between the parties, and failing agreement, the first half in odd-numbered years and the second half in even-numbered years, and for the purposes of this order, the long summer holidays shall be deemed to commence at the conclusion of school on the last day of the school year and to conclude at 6:00 p.m. on the Sunday before the commencement of the next school year;

10.

Should the mother move to Adelaide in compliance with paragraph (5) hereof, the child shall spend time with the father as follows during school terms from the commencement of the 2022 school year:

(a) On no less than one weekend of each South Australian school term by agreement, and failing agreement the fifth weekend, from the conclusion of school on Friday to 6:00 p.m. on Sunday, with the first two such weekends in 2022 to be spent in the Adelaide area, and thereafter in a city/town of the father’s choosing;

(b) by telephone, Skype, Zoom, FaceTime or other electronic means between 6:00 p.m. and 6:30 p.m. on each Tuesday and Saturday that the child is not in the father’s care, with the father to place the call to a number or electronic address provided by the mother, and the mother to ensure that the child has access to a fully-charged telephone, tablet or computer, that he is available to take the call, and that he is afforded privacy during the call;

and

11.

In the event that the mother does not move to Adelaide, from the commencement of the 2022 school year, the child shall spend time with the father each alternate weekend during school terms from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, or Monday if the Monday is a public holiday, with such weekends to coincide, as far as is reasonably practicable, with the father’s time with the child’s siblings B and C.

12.

On special occasions the child shall spend time with the father:

(a) Subject to the provisions of paragraph 8(a) hereof, from noon on Christmas Eve to 3:00 p.m. on Christmas Day in even-numbered years, and from 3:00 p.m. on Christmas Day to 6:00 p.m. on Boxing Day in odd-numbered years;

(b) For the child’s birthday each year if the mother relocates to Adelaide by Skype, FaceTime, Zoom or other video-based electronic means on the child’s birthday between 8:00 a.m. and 8:15 a.m. and between 6:00 p.m. and 6:15 p.m. each year;

(i) from the conclusion of school on 10 February, or 4:00 p.m. if not a school day, to the commencement of school on 11 February, or 10:00 a.m. if not a school day, in even-numbered years; and

(ii) from the conclusion of school on 9 February, or 4:00 p.m. if not a school day, to the commencement of school on 10 February, or 10:00 a.m. if not a school day, in odd-numbered years;

(d) at such other times as the parties might agree in writing.

13.

The child’s time with the father pursuant to paragraph (11) hereof shall suspend during all school holiday periods and shall recommence after the school holidays as if the holidays had not intervened.

14.

Changeover shall take place:

i. While the mother lives in Region D or the Region E of the Melbourne metropolitan area, at the McDonalds restaurant closest to the mother’s home at the commencement of time, and at the McDonalds restaurant closest to the father’s home at the conclusion;

ii.If the mother moves to Adelaide, in the baggage collection area of Adelaide Airport at the commencement of time, and at the McDonalds restaurant closest to the mother’s home at the conclusion.

15.

Save in the case of emergency, the parties shall communicate with each other using an application such as “2houses” or “My Family Wizard” and the subscription costs of such application shall be borne by the father.

16.

The parties shall keep each other informed as to their respective residential addresses and contact telephone numbers at all times, save that neither shall attend at the other’s address without first having obtained the other’s consent in writing.

17.

Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care, and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.

18.

Each party shall advise the other of any medication prescribed for the child while he is in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.

19.

The mother shall authorise any school, kindergarten or extra-curricular activity in which the child is enrolled to provide to the father at his expense all information, notices, photographs, reports and like materials, and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.

20.

Both parties and their partners shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited, and the father shall inform the mother of his intention to attend such a function or event no later than 48 hours prior.

21.

The parties are hereby restrained by injunction from:

a) Administering any form of physical discipline to the child;

b) criticising, insulting, belittling, or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;

c) discussing these proceedings or any issue the subject of these proceedings, in the presence or hearing of the child, save to explain the effect of these parenting Orders to him, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;

d) interrogating the child about his time with the other parent and from allowing any third party to do so; and

e) allowing the child to access, read or have read to him any portion of the Court’s Reasons for Judgment in this matter.

22.

Before issuing further proceedings for parenting orders, the parties shall attend upon a Family Dispute Resolution Practitioner and make a genuine attempt to resolve any dispute between them.

23.

The order of Judge Small made on 21 November 2018 appointing the Independent Children’s Lawyer is hereby discharged.

24.

All extant applications are otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The first two considerations are called “primary considerations” and are found in s.60CC (2) which reads:(2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this Court and the Family Court of Australia. In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said, at paragraph 26: A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. In other words, the meaningfulness of the relationships between a parent and a child is measured not by the amount of time they spend together, but on the quality of that time. In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. So the meaningfulness of a child’s relationship with his/her parents is enhanced when a parent provides a role model for the child and teaches the child by example what it is to be a citizen, a family member and a parent. If what the mother says about the father’s violent and abusive behaviour is true, he has not provided a particularly positive role model for X, and the reverse is also true, because each party accuses the other of behaviour that falls within the definition of family violence in s.4AB of the Act. As I have stated, I will return to the issue of family violence later in these Reasons. There is no evidence to say that X is neglected in any way in either parent’s care, but in addition to the family violence the mother says was perpetrated against her by the father, the mother alleges that the child is at an unacceptable risk of emotional, and perhaps physical abuse in the father’s care. It is her evidence that a few days after X came home from his time with the father on 10 February 2019, he woke with nightmares, saying that “his teddies were going to kill him”, and that his father had said “I’m going to kill you”. Ms Carver deposes that X had made that statement in his “angry voice, like the person who had said that to X had yelled at him”. She says that later on that same day, X had been “walking around the house, strumming his toy guitar and singing ‘kill, kill, kill, killing, killing, killing””. The mother deposes that she was “incredibly concerned about X’s disclosures” and that she had gone to his Maternal and Child Health Nurse for advice. She says that the Maternal and Child Health Nurse had referred her to “L”, a local counselling service, and that when she told L about what X had said, Ms M from that organization had accompanied her to the Town J Police Station, where she had made a statement. It is Ms Carver’s evidence that the police had advised her not to make X available for his time with Mr Sansford in future and that they had “encouraged me to seek an Intervention Order (IVO) against Mr Sansford”.