Dunstan and Raines

FAMILY COURT OF AUSTRALIA

DUNSTAN & RAINES

[2015] FamCA 684

FAMILY LAW – CHILDREN – with whom a child spends time with whom a child lives – relocation – child permitted to relocate with mother to United States in circumstances where father has spent little or no time with the child

Family Law Act 1975 (Cth) s 60CC,65Y(2)(b)

APPLICANT:

Ms Dunstan

RESPONDENT:

Mr Raines

FILE NUMBER:

HBC

401

2010

DATE DELIVERED:

20 August 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

14 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms White

SOLICITOR FOR THE APPLICANT:

Fitzgerald & Browne

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

Final Parenting Orders

All previous parenting orders in relation to J born … 2008 (‘the child’) be and are vacated, except for the interim orders 1, 2 and 3 made by consent on 7 May 2015 which orders will remain in place; in particular providing:-
(a)Ms Dunstan (‘the mother’) be allowed to take the child for a holiday to the United States of America between either on or about 2 July 2015 until on or about 17 July 2015 or on or about 24 September 2015 until on or about 9 October 2015 (‘the holiday’).
(b)The mother provide confirmation of her and the child’s intended travel dates within twenty eight (28) days of the date of this Order to the Father or the Father’s legal representative and to FitzGerald and Browne Lawyers.
(c)At the end of the holiday the mother is to return the child to the State of Tasmania as soon as reasonably practicable and advise the Father or his legal representative that she has returned with the child.
The child shall live with the mother.
The mother shall have sole parental responsibility for the child, including:-
(a)exclusive responsibility to apply for a passport or renewal of a passport for the child; and
(b)parental responsibility for arranging schools, classes, education and health care treatment for the child.
The mother shall keep Mr Raines (‘the father’) informed as to the child’s school (including the forwarding of school reports and an annual school photograph) and any major issues as to the child’s health.
Pursuant to s 65Y(2)(b) the mother is permitted to remove the child from the Commonwealth of Australia to live with her in the United States of America for a period or periods between 26 December 2015 and 1 June 2017; such permission to be in addition to that referred to above and to include the mother and child travelling between Australia and the United States of America over such period or periods.
For the purpose of the child’s travel to the United States of America the father shall do all such acts and all such things necessary and sign all such documents needed to obtain a visa for the child to travel to the United States of America.
Upon the mother’s final return from the United States of America to Australia prior to or on 1 June 2017, the mother is permitted to change the child’s place of primary residence from Tasmania to a mainland city within the Commonwealth of Australia (including Sydney), as is reasonably necessary to accommodate the mother’s and/or her present husband’s work commitments in Australia.
From the date of this Order until 25 December 2015 the child spent time with the father at the Children’s Contact Service Hobart (‘the Contact Centre’) for two (2) hours on one day of a weekend at times reasonably nominated by the service on:-
(a)the weekend of 5 or 6 September 2015; and
(b)Sundays the 11 October 2015 and 8 November 2015.
Each party shall communicate with the Contact Centre within seven (7) days of the date of these Orders and:-
(a)    arrange an appointment for assessment for suitability for supervised time;
(b)   attend the assessment;
(c)   comply with any appointments made by the Contact Centre for supervised time;
(d)   comply with all reasonable rules of the Contact Centre; and
(e)   comply with all reasonable requests and direction of the staff of the Contact Centre.
If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party has leave to restore the matter to the list on the giving of fourteen (14) days written notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).
The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the child as set out in this order at times nominated by the Contact Centre.
In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.
The father shall not attend the Contact Centre or its vicinity before his time with the child is to start and shall promptly leave the Contact Centre and the vicinity when his time with the child is to end.
The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.
The parties shall contribute equally to the cost of the Contact Centre.
The child spend time with the father supervised by the child’s paternal uncle Mr P (‘the child’s paternal uncle’) at Town X, Tasmania:
(a) for two (2) hours on 20 September 2015, 25 October 2015 and 22 November 2015; and
(b) for a period of four (4) hours on the Sundays 6 & 20 December 2015 and on Christmas Day 25 December 2015.
The mother shall return to Australia with the child for a period of time between 1 June 2016 and 31 July 2016 to enable the child to spend time with the father for a period of five (5) single days from 10.00am to 3.00pm at Town X, supervised by the child’s paternal uncle at such times to be as reasonably nominated by the mother at least six (6) weeks in advance after her communication with the father and the child’s paternal uncle during the summer school vacation in the United States of America.
The child shall spend time with the father at such other times as is agreed between the parties, including the time after the mother and child finally return to Australia from the United States of America on or before 1 June 2017 or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth) for the period after such final return.
In the event that the paternal uncle is not reasonably available on the dates referred to in these orders, it shall be open for the father to arrange for such time to be supervised by the Children’s Contact Service in Town Y.
The father and the child’s sibling L may communicate by Skype with the child each Friday at 6:00pm City Z time (which shall be mid-morning or midday Australian Eastern Standard time) with the Father to initiate the call and the mother to facilitate the call.
To that end the mother shall provide the father Skype connection details and the father shall provide the mother with Skype connection details on or before

1 December 2015.
The mother shall be responsible for the cost of airfares returning the child to Australia in June and/or July 2016.
The child shall spend such other time and communicate in such other ways as may be agreed between the parties in writing.

IT IS NOTED

Order 4 made 7 May 2015 requiring the payment of a bond is discharged.
The child is, and will remain, habitually resident in Australia despite residing in the United States for a limited period of time pursuant to these orders.
Pursuant to s 65DA(2) and s 62B, 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.
All extant applications (except applications for costs) be and are dismissed.
Any costs applications may be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunstan & Raines has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 401 of 2010

Ms Dunstan

Applicant

And

Mr Raines

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings relate to J, born in 2008, and who is aged six the time of these proceedings (‘the child’).
Ms Dunstan (‘the mother’) has been the primary carer, if not the sole carer, of the child since his birth. Mr Raines (‘the father’) has spent little time with the child and has had limited communication with the child since his birth.
The mother has re-married Mr R, who is an Australian citizen but is presently working in City Z in the United States of America. The mother seeks a number of orders, including:-
(a)an order that the child reside with her;
(b)that she have sole parental responsibility; and
(c)that she be permitted to remove the child from the Commonwealth of Australia and live with Mr R in City Z from on or after 26 December 2015 until some time between 1 January 2017 and 1 June 2017.
The mother sought orders that when she returns from the United States to Australia she be permitted to reside in Sydney or some other mainland city and not be required to return the child to live primarily in Tasmania.
The mother asserted that the father has a poor relationship with the child and that he should spend time with the child, but says it should be supervised as the child does not know the father.
She also sought orders that she return the child to Australia in mid-2017 and the child spend some time with the father, and that whilst she is in the United States the child have Skype communication with the father and with his elder sibling L (a child of the father and an earlier partner).
The father opposes the child being permitted to live in the United States for that period of 12 to 18 months. The father seeks orders that the child spends time with him on a regular basis including overnight time and that the parties have equal shared parental responsibility.

BACKGROUND

At the date of hearing the father was aged 39 and lived and worked in Town X in Tasmania, which is in North East of that state. The mother lives in the Hobart area. At the date of the hearing the mother was aged 32.
The time to travel between the homes of the respective parties is about three to three and a half hours.
The father has a child of an earlier relationship, L, who is aged 11. L lives primarily with the father.
The father has another child, C, who lives with his mother in Queensland.
The mother has known Mr R as a friend since 2001 and they commenced a romantic relationship in 2013. Mr R is an Australian citizen.
The mother and Mr R married in 2015. Mr R is employed in City Z. He has a two year temporary working visa which expires in June 2017.
Mr R gave evidence, which I accept, that he had been applying for a permanent visa in the United States, but has withdrawn that and intends to return to Australia in the first half of 2017.
The father and mother were in a relationship between 2007 and 2008. The child was born in 2008 and shortly thereafter the parties separated.
It is not in issue that the child has been in the primary care of the mother since that time and the father described the mother as a ‘top mum’. Over 2009 the father had regular contact with the child. The father’s evidence is that this continued until early to mid-2010.
The mother’s evidence is that it became somewhat irregular and that the father only saw the child two or three times between January 2010 and April 2010.
Given the comments I later make in respect of the evidence of the mother and father, I am satisfied that the mother’s evidence is more reliable.
The father spent no time with the child between April 2010 and March 2013. In March 2013 the father commenced spending supervised time with the child at a Children’s Contact Centre. From March to June 2013 there were six supervised visits, however these were cancelled as a consequence of the father’s reluctance or inability to attend on regular occasions.
There was an issue as to whether the last time the father saw the child was in June 2013 or June 2014. Given the comments I make about the evidence of the father and the mother later in these reasons, I am satisfied that the child has not seen the father since June 2013.
The communication between the mother and father is poor and there have been few direct discussions between them since 2010.
In December 2012 the mother had been trying to obtain consent from the father for a passport for the child to travel overseas for a holiday. The father resisted that request until proceedings were commenced, and he then conceded that the passport should issue.
In October 2014 the mother endeavoured to enter into negotiations with the father in respect of the child relocating to the Unites States with her but the father did not attend mediation.
As a consequence, on 14 November 2014, these proceedings were commenced in the Federal Circuit Court.
A child dispute conference was held in April 2015 and these proceedings were heard in August 2015.
On 7 May 2015 consent orders were made and directions were made for trial. Directions were made for the parties to file affidavits and prepare for a hearing in early August 2015. At that time the father was represented.
The father did not comply with those directions in terms of filing his affidavits. At the commencement of the hearing on 14 August 2015 the father sought an adjournment as he said that his legal representation had fallen through.
At that time the mother was ready to proceed and Mr R had flown to Australia from the United States for the purpose of giving evidence.
I published reasons and refused the application for adjournment.
The father was given leave to adduce oral evidence and otherwise represented himself.
In coming to this decision the Court was very aware that the father was unrepresented and endeavoured to provide all reasonable assistance to the father in terms of the proceedings, given the juris prudence around the Court’s obligations in that regard.
Any statement of fact is to be regarded to be a finding of fact unless it is clear from the context.

THE LAW

When determining orders the approach and statutory pathway is governed by Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA of the Act and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings were commenced after 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date apply to these proceedings,
Pursuant to s 61DA (2) of the Act the presumption of equal shared parental responsibility does not apply as there is reasonable grounds to believe that a person who lives with a parent of the child has engaged in family violence.
Counsel for the mother asserted that on the evidence, the presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that a person who lives with a parent of a child who has engaged in family violence.

THE EVIDENCE

The mother relied upon affidavits of Mr W filed 26 June 2015 and Mr K filed 26 June 2015. This evidence related to the status of the treaties between Australia and the United States and the making of orders in Canada. That evidence was admitted into evidence without controversy.
The father’s previous lawyers had consented to that course taking place and the father adopted that course during the hearing.
I had considered requiring the mother to put in place orders in the United States however, given the relatively short period of time she will be in that country, and the mother’s consent that there ought to be an order that the child’s place of habitual residence was Australia, and given that the United States of America is a signatory to the Hague Convention on Abduction of Children, I have, in all of the circumstances, determined that a mirror or similar order in the United States is unnecessary. I will not make that order.
A child dispute conference was held between the parties on 10 April 2015 and a Child Dispute Conference Memorandum to Court was prepared by a family consultant. That Memorandum was tendered in evidence and was unchallenged.[1]
[1] Exhibit Applicant 2.
In that Memorandum it was noted by the Family Consultant:-
A family report is likely to provide little additional helpful information to the court at this stage. About possible relocation, [the child’s] opportunities to develop and maintain a relationship with his father will be more limited if [the child] lives in another country than his father but they have been living in the same state and [the child] does not have a close connection with his father. Relocation to another part of Australia (particularly Sydney) may not add significant further barriers to establishing time between [the child] and his father. As noted above, it is preferable that [the child] becomes more familiar with his father and half-brothers before any possible relocation.
If there had been interim arrangements in place for [the child] to spend time with his father, a family report is likely to be of assistance. There would have been more recent information about [the father’s] commitments to establishing and maintaining time with [the child] and about the development of the father/son relationship.
That evidence was read into evidence without controversy.

THE MOTHER

The mother gave evidence in accordance with her affidavit filed 26 June 2015. That affidavit was read into evidence.
In her oral evidence the mother refocused on the orders she sought which are substantially as are made by the Court.
In her affidavit the mother gave evidence of the time the father has spent with the child since his birth. The mother was not seriously challenged in relation to that child and gave careful and thoughtful evidence in that respect.

The evidence of the mother is that she has not prevented time but the time has been difficult for her particularly in the early stages where she asserted that the father yelled at her and she said that she was frightened of him. I accept her evidence in that regard given the detail to which is provided.
The mother said the child enjoys a good relationship with his paternal uncle Mr P who visits him from time to time. The mother says she is satisfied that the child would be safe if supervised by Mr P.
The mother is not satisfied that the father has the capacity to look after the child unsupervised, as at this time, the child has never spent a night with the father.
There are some issues between the affidavit of the mother and an earlier affidavit of the father. Given the mother’s careful and thoughtful evidence and some concessions made by the mother from time to time, I accept that her recollection is more reliable than that of the father.
I generally accept the evidence of the mother as reliable.

MR R

Mr R is the mother’s present husband and he provided evidence in accordance with his affidavit filed 1 June 2015. That affidavit was read into evidence and Mr R made himself available in Australia for the purpose of cross-examination.
He was asked questions by the father but was not seriously challenged. He gave clear and unambiguous responses and I am satisfied that his evidence is substantially reliable.

MS N

Ms N is the child’s maternal grandmother. She provided evidence contained in her affidavit filed 26 June 2015. That affidavit was read into evidence.
Much of the material contained in that affidavit is of an hearsay nature and I have given that hearsay and opinion evidence little or no weight.
I have accepted the evidence of Ms N in relation to the stress and impact of the visits between the child and the father on both the mother and the child. Those early times, in particular, were clearly fraught for the mother.

THE FATHER

The father relied upon his affidavit filed 10 March 2015 and sworn by him on

6 March 2015. That affidavit was read into evidence.
In addition the father was given leave to adduce oral evidence, which he did.
The father was complimentary of the mother and said she was ‘a top mum’. He seeks regular unsupervised time with the child.
If the child is to go the United States he seeks that the child be returned twice per year. The father’s evidence was that he has an income of less than $20,000 a year and could not afford to assist in any of the costs in returning the child.
The evidence of the mother, which was not challenged, was that the father pays child support of about $30 per month.
The father had made an appointment with the Children’s Contact Centre for an assessment last week but missed that appointment. He has now made another appointment for Tuesday following the hearing.
In his evidence the father showed little insight into the impact on the child of a resumption of time given the history of the very limited and irregular time that he has spent with the child.
If the child travels to the United States the father sought permission to Skype the child two days per week. Given the time difference and the working arrangements that is perhaps impracticable.
The father was cross-examined in relation to the last time he saw the child. He prevaricated and obfuscated in relation to that evidence and it was unsatisfactory. The father was cross-examined in relation to the passport request by the mother in terms of her proposed trip overseas some years before and again he prevaricated in terms of that evidence.
His answers at times were somewhat glib.
In terms of the child’s relationship with his uncle Mr P, the father said it was good although the father was reluctant to involve his brother given that his brother lived in Town X, is married and had two children.
The father was asked about yelling at the mother and he again prevaricated in terms of this evidence. When challenged the father tended to deflect and, when pressed, deny or suggest poor recollection.
I do not regard his evidence in that respect as reliable.

Section 60CC Factors

I am required to consider the factors under s 60CC of the Act in determining these parenting issues. In considering these factors, I have had regard to all of the relevant evidence provided during the hearing and findings made by me.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

There is no issue that the child has a good, close and loving relationship with his mother, and that it is continuing and will continue. The difficulty with the child’s relationship with the father is that he has not sought to develop a meaningful relationship with the child since at least 2010.
The mother, whilst nervous about the father, has facilitated time. The father has not been consistent in spending time with the child. There have been lengthy periods of time when the father has not sought to see the child.
As I said earlier the father has not seen the child since June 2013 despite orders being in place. The cessation of time was not brought about by the mother, but was brought about by the father allocating priorities in different ways.
The father has not provided birthday presents or cards to the child and his explanation in that respect was unsatisfactory.
The mother has not objected to time between the father and the child but has sought that it be careful and thoughtful given the limited time the father has spent with the child. This was not obstructionist; this was a sensible child focused approach.
The mother suggests some arrangements for the father and L to see the child between now and the end of the year and that she will bring the child back in the middle of 2016.
I am not satisfied that the relationship between the father and the child will be lost if the mother relocates to City Z and/or relocates to Sydney or the mainland of Australia on her return.
I am not satisfied that the period of time that the child lives in the United States will materially impact on the relationship between the father and the child given the history to date.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

I accept that towards the end of the relationship and after separation the father was verbally abusive to the mother and made her feel unsafe and that she was stressed and that stress impacted upon the child.
I am satisfied that the child, from time to time, struggles with spending time with the father.
Accordingly for the medium term, any time the child spends with the father ought to be in supervised circumstances, whether that is supervised by a Children’s Contact Service at Hobart or by supervision of the child’s paternal uncle Mr P, whom the mother regards as reliable, needs to remain in place.
The relationship between the father and the child can be given an opportunity to develop in this regard.
I am not satisfied, in all of the circumstances, that either overnight time or unsupervised time should, at this stage, be seriously contemplated.

Section 60CC(3) Factors

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

The child is aged six and has expressed some views that he does not know why he cannot live with his mother and Mr R in the United States. That is the limit of the views of the child.

(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

There is no issue that the child has a close relationship with the mother and she is his primary carer. The child currently knows who is father is but does not have a relationship with him.
Much of this is as a consequence of the father not arranging to spend time with the child to date. I am satisfied that the mother has not isolated the child from his paternal family, quite the contrary given his relationship with his uncle Mr P. I am satisfied the child has a good relationship with Mr R.

(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;

The mother has been and continues to be the child’s primary carer. In that role she has made almost all of the decisions about long and short-term issues relation to him.
The father has failed to become involved in the decision making regarding the child. The father has been given opportunities to spend time and communicate with the child, as set out elsewhere, he has failed, on numerous occasions over the whole of the child’s life, to take opportunities made available to him to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.
He has left the parenting to the mother.

(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

The mother has wholly fulfilled her obligations to maintain the child. The father has paid very modest child support, in circumstances to which I have alluded elsewhere in these reasons. The mother and child are or will be financially dependent the mother’s present husband.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Given the history of this matter and given the poor relationship between the father and the child and the child and his siblings, the move to the United States for the period of time referred to earlier and likely relocation to Sydney after that time, there will be no significant change.
The mother proposes a way that the communication between the father can continue, and perhaps prosper through time, between the father and the child from September 2015 to December 2015 and through Skype communication.
The mother has maintained a connection with the father’s family.

(e)the practical difficulty and expense of a 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;

I repeat the comments I have made earlier. The mother has agreed to meet the costs of one return trip to Australia in that 12 or 18 month period. It is clear that the father cannot seriously contemplate making any contributions in that respect.
That is a significant difficulty, however, given the approach by the father to his relationship with the child, it is not likely to change the circumstances.
The father, and L, will have an opportunity to see the child between now and December 2015 and regular opportunity to Skype with him whilst he is overseas. The mother has agreed to return the child to Australia in mid-2016.
Whilst there is practical difficulty, the mother has endeavoured, in all the circumstances, to meet that in a practical and logical sense.

(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The father has contributed $30 per month in child support since separation and given his income that is perhaps not unreasonable.
The consequence of that is that the mother has provided for the child’s financial, physical and emotional needs.
The mother has demonstrated a capacity to provide for the child’s needs. The father’s capacity to care for the child is not known.
The father has the care of L, although that has not been assessed. Any time the father is to spend with the child needs to be built up over a period of time and that can be done with the arrangements which are put in place.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

No submissions were made in this respect. The child has elder siblings and the father has not effectively or proactively facilitated the sibling relationships. The mother’s proposal provides some amelioration of this circumstance both when she is in the United States of America or in mainland Australia.

(h)Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

The mother has demonstrated a mature and child focused approach to parenting. The father’s current lifestyle is largely unknown. He did not file an affidavit in that regard and he has not shown any consistent interest in connection with the child.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

No criticisms can be made of the mother in this respect. The father has shown a poor attitude towards the child having regard to his general lack of involvement in the child’s life except in an oppositional way when the mother sought to travel overseas on holiday with the child and when the mother seeks to resume her cohabitation with her husband.

(j) any family violence involving the child or a member of the child’s family;

There was family violence at the commencement of the relationship which has had an impact on the mother. However, the mother has said that provided there is supervision in place, that she will manage the child spending time with the father.
The mother is still clearly nervous about the father.

(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;

Not applicable.

(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The mother submitted that the approach adopted by her is least likely to lead to the institution of further proceedings.
I accept that submission.

(m)Any other fact or circumstance that the court thinks is relevant;

The father has left the mother to make virtually all of the decisions in respect of the child to date. The father has not taken seriously his relationship with the child and has not effectively sought a relationship with him except on an on again/off again basis.
As I indicated earlier the father has not sent birthday presents or cards and has not seriously sought to engage in the child’s life.

PARENTAL RESPONSIBILITY

The mother has had effective sole parental responsibility since the child was born in 2008.
The father has not seriously engaged in the child’s life. The parties have not spoken meaningfully since 2010.
The mother was concerned that the father would verbally abuse her. I find that he did do so. I accept the mother’s evidence that the father was at times unavailable by telephone.
The father is obstructionist and his approach to this application and his approach to the mother’s proposed holiday overseas are examples of this.
The mother has adopted a sound child focused approach and I am satisfied, given all of the facts, circumstances and reflecting on the s 60CC factors, that would be in the child’s best interests for there to be an order that the mother have sole parental responsibility.
That parental responsibility does not include changing the child’s name, but does include the ability for the mother to move residence to the United States of America for the period of time referred to earlier and to return to the mainland of Australia (likely Sydney) in 2017.
The mother should have permission to arrange for passports for the child and ought to keep the father informed of significant events in the child’s life.
Given that I have determined that this is not a case where there can be shared parental responsibility given the outcomes and given the history, this is not a matter where I need to consider significant equal time or significant or substantial time.
Given all of the circumstances I am satisfied that there ought to be an order for sole parental responsibility.

RESIDENCE

There is no issue that the child will continue to reside with the mother.

RELOCATION

I have considered the effect of no relocation to the United States and the effect of relocation to the United States. Given all of the evidence to which I have briefly referred above and given the respective factors, I am satisfied that the mother should be permitted to reside to the United States for a period of twelve to eighteen months from December 2015. When she returns she and the child should be able to reside on the mainland (probably Sydney) where Mr R is likely to be working.
This will not derogate from the current relationship between the father and the child. The mother has made it open for the child to spend time and communicate with the father.
There is no significant utility in requiring the mother to continue residing in Tasmania particularly given that Mr R is likely to be working in Sydney when he returns from the United States in 2017.
In the interim order I had made earlier, I required the mother to pay a bond to her solicitor’s for the short holiday to the United States. Given this determination this bond seems superfluous at this stage and accordingly I will be discharging that order.

COMMUNICATE

The father sought two or three telephone calls per week between himself and the child. Given the time difference and the father’s approach to communication in the past, I am satisfied that one Skype call a week with the father and the child would, in all of the circumstances, maintain and perhaps develop a relationship with the child..
If the call were arranged for 6.00pm on Friday afternoon in City Z time that would be mid-morning Saturday in Tasmania and would then fit in with timings between the father and the child. I intend to make that order.

SPEND TIME WITH

The child does not know the father. The mother has endeavoured to build this relationship up in 2013 and the father has effectively abandoned that process. As such some two years later the process needs to start again.
To that end I am proposing that the child spend each alternate weekend with the father either in Hobart at the Children’s Contact Centre or in Town X with the paternal uncle Mr P, (or the Town Y Children’s Contact Centre if the paternal uncle Mr P is unavailable) to operate through the months of September, October and November 2015.
I have given an extra week in early October 2015 to account for the mother’s proposed trip to the United States in accordance with the orders made in May 2015.
I have also put in place orders to enable the child to spend four hours on three days in December 2015 (including Christmas Day) prior to the child and the mother leaving for the United States.

Given the lack of a relationship between the father and child, I am not content for the child to spend unsupervised time or overnight time with the father in June/July 2016 given the history of this matter. As such I have put in place arrangements for time during the day with such time to be supervised by the child’s paternal uncle Mr P.
I am satisfied that given the mother’s current personal circumstances, the father’s past lack of interest in the child and the relatively short period of time overseas and the mother being the child’s primary carer (and for that matter the only likely carer for the child) that there are persuasive reasons why the relocation would be in the child’s best interest. This includes the need for the financial and personal stability of the mother and child when she returns to Australia in circumstances where her husband will likely work in Sydney, with his present employer.
As the mother will need to obtain visas, and from time to time, updated passports, I have made orders to facilitate those processes.
I make it clear in these reasons that the mother’s permission to travel overseas is limited to the trip to the United States in September/October 2015 and the time in the United States from December 2015 until the first half of 2017.
Any other proposed overseas trips would either need consent of the father or order of a court exercising jurisdiction under the Act.
One of the determining factors was whether or not the proposed relocation would interfere with the child’s right to maintain a meaningful relationship with his father. In my view if the relocation is permitted, the mother can be trusted to actively encourage and facilitate the child’s relationship with his father and to facilitate as much time with him as possible. The arrangements the mother proposes will enable the child to maintain a relationship, given the circumstance of that relationship put in place by the father.
Given all of the facts and circumstances, I am satisfied that the orders set out at the commencement of these reasons are, in all of the circumstances, in the best interests of the child.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 20 August 2015.

Associate:

Date: 20 August 2015

[2015] FamCA 684

20 August 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Remedies

Procedural Fairness