Errington and Samuels and Ors
[2011] FamCA 98
•25 February 2011
FAMILY COURT OF AUSTRALIA
| ERRINGTON & SAMUELS AND ORS | [2011] FamCA 98 |
| FAMILY LAW - CHILDREN – Lengthy hearing in 2007 – application for dismissal – relying on principles set out in Rice & Asplund – proceedings summarily dismissed |
Family Law Act 1975 (Cth)
| Rice v Asplund (1979) FLC 90-725 Wickam v Jones [2010] FamCA 837 |
| APPLICANT MOTHER | Ms Errington |
| FIRST RESPONDENT FATHER | Mr Samuels |
| SECOND RESPONDENT GRANDFATHER | Mr Samuels Snr |
| THIRD RESPONDENT GRANDMOTHER | Mrs Samuels |
| FILE NUMBER: | HBC | 284 | of | 2009 |
| DATE DELIVERED: | 25 February 2011 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 2 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Turnbull |
| SOLICITOR FOR THE FIRST RESPONDENT: | Ogilvie Jennings |
| COUNSEL FOR SECOND RESPONDENT: | In person |
| COUNSEL FOR THIRD RESPONDENT: | In person |
Orders
All pending applications between the parties are dismissed.
This matter be removed from the list of cases requiring determination.
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 under the pseudonym Errington & Samuels and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC: 284 of 2009
| Ms Errington |
Applicant
And
| Mr Samuels |
First Respondent
And
| Mr Samuels Snr |
Second Respondent Grandfather
And
| Mrs Samuels |
Third Respondent Grandmother
REASONS FOR JUDGMENT
INTRODUCTION
Ms Errington (“the mother”) filed an application in the Federal Magistrates Court in Lismore on 2 August 2010 seeking an order that K (“the child”) (who at the date of this hearing was aged about twelve and a half) live with her at her then address in northern New South Wales and that there be no restrictions upon which State the mother’s address is located within. The mother now lives in South East Queensland and wants the child to live with her at that address.
The child has been living in Tasmania with his paternal grandparents, Mr and Mrs Samuels (“the paternal grandfather and paternal grandmother”), since an order was made by Mushin J in June 2007. The child’s father, Mr Samuels Jnr (“the father”), lives close to his parents and spends regular time with the child. The respondents all oppose the orders sought by the mother. They want the child to continue living with his grandparents in Tasmania.
The proceedings were transferred from the Federal Magistrates Court in Lismore to the Family Court, Hobart Registry.
The paternal grandparents and the father sought an order that the proceedings commenced by the mother be dismissed pursuant to the principles set out in Rice v Asplund (1979) FLC 90-725.
That application for dismissal was heard by me at Hobart on 2 February 2011. The mother and the paternal grandparents were self-represented, the father was represented by Mr Turnbull of counsel.
BACKGROUND
The mother is aged 30 and now lives in X which is apparently a quiet town on the South East Coast of Queensland about forty kilometres from Surfers Paradise and about fifty six kilometres from the Brisbane central business district.
It was an agreed fact that at the time of the hearing before Mushin J in May 2007 the mother lived in Perth. In March 2009 she moved to the central coast of New South Wales. From there she moved to northern New South Wales in May 2010 and then to south east Queensland in August 2010, where she currently resides. She has been employed as a nanny in that area since that time and asserts that she has the qualifications and/or experience to undertake that work.
The father is aged 37 and is unemployed. At paragraph 6 of the reasons of Mushin J observed that:-
… He [the father] suffered from schizophrenia for a substantial part of his life. He concedes that his health prevents him from parenting K but seeks to spend time and communicate with him, at times and on conditions to be negotiated with his parents.
The father’s health remains static and he is not a candidate for full time care of the child.
Over six days in May 2007 these proceedings were heard by Mushin J. His reasons were delivered on 5 June 2007 and they were part of the material before me. I have had regard to those reasons and the findings contained in them.
Orders were also made on 5 June 2007 that the child reside with his paternal grandparents. The paternal grandfather is now aged 63 and the paternal grandmother is now aged 60.
In April 2009 the paternal grandparents commenced contravention proceedings in the Hobart Registry of the Court and about ten days later the mother (apparently, not being aware of the earlier contravention application) commenced proceedings seeking an order that the child reside with her. Those proceedings were heard by Baker FM in Hobart and on 22 May 2009 she made orders varying the order made on 5 June 2007 by providing that the child spend time with the mother in Tasmania. Further she dismissed the contravention application and the mother’s parenting application was adjourned and later transferred to the Family Court, Hobart. An Independent Children’s Lawyer was appointed.
In those proceedings there was an application to have the parenting aspect dismissed pursuant to the rule in Rice v Asplund (supra). On 22 June 2009 the then application by the respondents under the rules set out in Rice v Asplund were not pressed and were dismissed. The substantive parenting proceedings were listed for the first day of a less adversarial hearing before me in or after November 2009.
The parties had settlement discussions over that time. The mother was legally represented, as was the father. An Independent Children’s Lawyer was involved. The paternal grandparents acted for themselves. The proceedings were settled.
On 17 November 2009 consent orders were made which substantially confirmed a majority of the orders made by Mushin J in June 2007. The new orders made some minor variations to the Mushin J orders and in particular, left the child in the primary care of his paternal grandparents. It also provided that the child could spend time with the mother when her then partner was present, provided the child was not left alone in the care of her then partner.
All applications were then dismissed.
The application presently before me was commenced by the mother in Lismore in August 2010 (about 9 or 10 months after the parties entered into final consent orders). It is the contention of the father and the paternal grandparents that the proceedings should be dismissed on the basis that there has been an insufficient change in circumstances to warrant a further hearing being imposed upon the parties and, in particular, upon the child.
In terms of the running of the hearing, I allowed the mother to argue her case first and then and then allowed the paternal grandparents and the father to respond. The mother had a final right of reply, as the mother was unrepresented and the only party represented was the father and his counsel supported the grandparents, this was a fairer approach for the mother. I explained the nature of the proceedings and the processes to the mother and I had previously arranged for a copy of my decision in Wickham v Jones[1] to be provided to her.
[1] 2010 Family FamCA 837
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The relevant principles were set out by me in Wichkam v Jones, where I said the following at paragraphs 39-47:-
39.As I said in Cook & Tracey [2008] FamCA 74, a statement of the relevant law is contained in the Full Court’s decision of F & C [2004] FamCA 568, where Kay, Warnick and O’Ryan JJ said:-
36. The Family Law Act 1975 provides in s65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37.There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).
40.The principles in relation to the protection of children from involvement in unnecessary litigation are identified by the Full Court in Rice v Asplund (supra) where the Court stated:-[2]
… The court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which should have been material (passage quoted in Hayman and Hayman (Supra) at p.75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of fact that there are circumstances which require the court to consider afresh how the welfare of the child could best be served. These principals apply whether the original order is made by consent or after a contested hearing. The way that they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any finding of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interest of the child.
…
[2] At 78,905.
41.This decision has been affirmed in a number of cases and the general principle is that a fresh application for parenting orders should only be entertained by the court where there is a significant or substantial change in circumstances. In D & Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
42.In King v Finneran (2001) FLC 93-079; Collier J, when determining an appeal from a Federal Magistrate, held that the amendments to the Family Law Act 1975 (Cth) in 1995 requiring a full inquiry of the matters set out in s 68F do not disturb the trial judges discretion to make a threshold determination whether to proceed to a full hearing, and stated at 88,367:-
41.The rule in Rice and Asplund is a rule evolved to protect children from the involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.”
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the father urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191.
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49.Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50. … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation.
43.In CDJ v VAJ (1998) 197 CLR 172 the High Court determined an appeal concerning the circumstances in which a Court might admit further evidence in parenting cases, and I have had regard to those principles which are outlined earlier in these reasons.
44.In Bolitho and Cohen (2005) FLC 93-224; Bryant CJ, May and Boland JJ agreed with and adopted the principles set out by Collier J in King and Finneran (supra) and held that the trial judge had appropriately applied the relevant principles by identifying the changes in circumstances, which included the children’s wishes, the children’s maturity to express such wishes, the children’s relationship with the mother and their poor school performance. There was no error of principle or basis for the submission that it was inappropriate for the trial judge to reconsider the parenting orders or that he failed to give sufficient reasons for his decision to do so.
45.I also particularly note the comments of Atobelli FM in Parmo & Scott (No:2) [2007] FMCAfam 1039; who said :-
5.… The rule in Rice & Asplund is not an exception to the principle contained in s.60CA of the Act that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Rather that the rule being an exception to the paramountcy principle, it is in fact, a manifestation of it. The impact of conflict on children is well documented.”
6.As the Full Court said in Rice v Asplund itself, “change is an ever present factor in human affairs.” Having regard to the impact on children of litigation concerning them, the change must be significant indeed. The benefits to them of revisiting the orders have to be substantial in order to justify exposing them to further litigation between their parents.
46.I have had regard to s 69ZN of the Act. Section 69ZN sets out principles for conducting child related proceedings. Those principles include a requirement that the Court is to consider the needs of the child concerned and the impact the sittings may have on the child in determining the conduct of the proceedings. The subsection provides:-
Section 69ZN(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
…
Section 69ZN(3) Principle 1 The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
47.The principle set out in ss 69ZN(3) imposes an obligation on courts to look at the impact that the proceedings may have on a child. The principle must also apply to the serious question of rehearing children’s cases with the consequent impact on the child or children.
The paternal grandparents relied upon the following material:-
(a)affidavit of the paternal grandmother filed 9 September 2010;
(b)affidavit of the paternal grandfather filed 9 September 2010;
(c)affidavit of the mother’s sister, C Errington, filed 25 October 2010;
(d)affidavit of the paternal grandfather filed 5 January 2011;
(e)affidavit of the paternal grandmother filed 5 January 2011.
In his first affidavit the paternal grandfather set out his concerns as to the impact of the proceedings on the child and his concerns about the mother in addressing questions of violence and neglect (which I have dealt with later in these reasons).
There is no issue that the child commences high school this year and has spent most of his recent years in Tasmania attending a local public school. I have had regard to all of the matters contained in the paternal grandfather’s affidavits, although, naturally I have made no findings in relation to same. I make similar comments in relation to the affidavits of the paternal grandmother.
The mother’s sister, C Errington, in her affidavit set out further material. I have had regard to that material and I have made no findings in that respect although it is significant that C Errington is prepared to provide evidence opposing the change of residence sought by her sister.
The mother relied on a series of affidavits including her affidavit filed 2 August 2010 in which she simply asserted that the child said he wanted to live with her, her affidavit of 23 August 2010 where the mother expanded on the issues of the child’s views and complained about his relationship with his paternal grandparents. Much of the material in that affidavit was by way of submission.
The mother filed a further affidavit on 25 October 2010 where she said the unacceptable risks in relation to Mr B had reduced as:-[3]
The passing of fourteen months and no further charges laid and no allegations against [Mr B]. Unacceptable risk diminished.
[3] At paragraph 1 of the mother’s affidavit filed 25 October 2010.
The mother said that Mr B is no longer in her life and has not been in her life since February 2010. If the matter proceeds to a hearing that issue would need to be addressed.
It is clear from the affidavits that there continue to be high levels of animosity between the parties.
The mother says that she has a closer relationship with the child and that she is more in tune with his needs. The mother relied upon a further affidavit filed 19 January 2011. In that affidavit the mother said she had made arrangements for the child to speak to a counsellor in January 2011, although this was clearly without the consent or knowledge of the paternal grandparents. The mother also gives details of her employment and her current residential circumstances.
The mother’s case was that time has passed since the determination of Mushin J, a period of over three and a half years, and it has been over a year since the consent orders were made in November 2009.
She says that circumstances have changed in that time in that she has moved to Queensland and is now settled (she has been at her present address for about five months). She says she is the mother and she was the principal carer of the child until June 2007 (apart from a period when the child was living with the paternal grandparents in Hobart prior to January 2007).
The mother says that her former partner is no longer on the scene, although this will be an issue of fact at the final hearing if it gets to that, and that the child wants the change. The mother says that she lives in a settled stable environment which will benefit the child.
There was no issue that the child has regular and broad contact with both sides of his family in Tasmania. He regularly sees his maternal aunt, the paternal side of his family and his maternal grandmother lives in Tasmania.
In terms of the history of this matter, it is of value to observe the reasons of Mushin J set out in June 2007. He sets out in paragraphs 150 and 151 the following:-
150. The positive factors in relation to the mother are as follows:
·she has cared for K for most of his life;
·she loves him dearly and wishes to continue to care for him;
·while acknowledging her difficulties with parenting in the past and the fact that her relationship with K is damaged, she asserts that she has changed and would like the opportunity to demonstrate that to K; and
·she will promote the relationship between K and the grandparents and father, as well as his maternal grandmother.
151.The negative factors in relation to the mother are as follows:
·the relationship between the mother and K is seriously damaged as a result of the mother’s previous parenting;
·in particular, the mother has been physically and emotionally abusive of K;
·arising out of K’s further disclosures of suffocation and having his head bashed against a wall between January and April 2007, the abuse referred to in the last bullet point has not stopped;
·accordingly, the mother’s assertion that she recognises the negative aspects of her parenting in the past and has changed cannot be accepted;
·the mother’s relationship with Mr B is significant. I develop that proposition below; and
·K does not wish to live with his mother. He wishes to live with his grandparents.
The mother cared for the child for most of his life and that she loves him and continues to care for him, and whilst acknowledging her difficulties with her parenting in the past and the fact that her relationship with the child is damaged, she asserts that she has changed and would like the opportunity of demonstrating that and that she would promote the relationship between the child, the grandparents and the father as well as his maternal grandmother. Mushin J went on to observe that the negative factors were that the relationship was damaged, that the mother had been physically and emotionally abusive to the child and the mother’s relationship with her then partner.
Further, the child did not at that time wish to live with the mother, he wished to live with his grandparents. Prior to that hearing the child was interviewed twice, once in Tasmania and once in Perth and the family consultant said (and Mushin J accepted) the following:-[4]
The next five years of K’s life will determine whether he grows into a well adjusted happy teenager who will fulfil his academic and life potential. If there is any risk of abusive parenting during the next five years, K will be at risk of developing into an angry, acting out teenage boy who will be unlikely to fulfil his potential.
[4] At paragraph 93 of Mushin J’s reasons.
The family consultant went on to observe that the child had been consistent in expressing his wish to live in Tasmania. The family consultant also observed that the child did not miss the mother much:-[5]
…. but said he missed his grandparents very much when he was in Perth.
[5] Ibid at paragraph 88.
In terms of the evidence of the mother, Mushin J was cautious about the way she gave evidence and preferred the evidence of the mother’s sister to that of the mother.
There was no evidence before me that the mother has taken steps to address all of the issues raised by Mushin J in his reasons. She says she has ended the relationship with her former partner, however, the issues of violence and abuse were not addressed in her material.
It is clear that the child is settled in Tasmania in the care of the paternal grandparents and has regular contact with the mother and other members of both his paternal and maternal family.
This child has been forced to endure litigation since 2006, which has been on and off for over a period of almost five years. The proceedings ended in June 2007 then re-commenced in 2009 and then re-commenced in 2010. There is an issue as to the stability of the mother’s place of residence in that she has moved from Perth, to the central coast, to northern New South Wales and then to her present address. The mother has only lived at that address since August 2010.
The mother says the child’s wishes are significant. They may well be. However, I am concerned about putting the child in a position where he needs to endure another hearing and another set of investigations where he may feel responsible for the decision-making process (albeit the decision would not be his).
The parties engaged in further litigation in 2009 and at that time the mother, with the assistance of legal advice, settled the proceedings including an application that the child live with her. I would need to be left in no reasonable doubt that it was necessary to re-litigate the parenting issues between the parties. Treating the mother’s evidence in the best light for the purpose of this interlocutory application, I am not satisfied that there is a real likelihood that a change of residence will follow. The child is at a school with friends with whom he has been attending school in recent years. He commences high school this year. He is settled and sees the mother regularly.
There was criticism in submissions by the mother that the paternal grandparents did not facilitate the child’s time with her. Yet this criticism must be seen in the context of the orders made in 2009, including the order which enabled the mother to bring the child into contact with her former partner, notwithstanding the scathing comments made by Mushin J in his earlier judgment. I am satisfied this is indicative of an approach by the grandparents to encourage and support a relationship between the child and his mother.
I am not satisfied that the mother has demonstrated a change which requires a court to examine the situation of the child afresh. It is important to try and protect this child from further litigation.
One of the issues in this case are the child’s views (I have had regard to those, I accept the child is mature). The child has a strong relationship with his father, grandparents and mother.
In coming to this decision, I have had regard to the views of the child as expressed by the mother (I have assumed those views only for the purpose of this application). However, even if correct, I am not bound by the child’s views and I also accept that he is very much a part of his broader family in Tasmania. Other evidence is that the child seems quite settled in Tasmania and spends regular time with his parents’ siblings and with his grandparents.
What I have also considered, and that which I raised with the mother during the course of the submissions, was the question of the impact of these proceedings on the child. Inevitably with a child 12, almost 13 years of age he will be very aware of these proceedings. There is no doubt that the mother loves the child and the child loves the mother.
It was the mother’s view, in November 2009, that the child should continue living with the paternal grandparents. The child will no doubt feel considerable burden as to his loyalty to his grandparents and to his mother. That will be a significant burden upon him. In a case such as this, equal time or significant and substantial time are geographically impossible.
Inevitably in high conflict matters such as this, the child will be the subject of pressure from one side and/or the other. I cannot, at this point in time, assess the extent or nature of that pressure. However, it will be there and will have impact upon the child.
It will be necessary for the Court to arrange for the child to be interviewed by a family consultant or psychologist to ascertain his views (there is a statutory requirement to do so). Part of that interview process will be to re-visit the questions of violence and abuse which were referred to in the reasons of Mushin J. That will likewise impose a further burden on the child and will perhaps rekindle memories and feelings that were to be ended after the last hearing. I have had regard to that circumstance.
The mother says, and it is not in issue, that she was the primary carer for the child for the initial part of his life. She says that because of her position as the only parent effectively being capable of caring for the child that she should be given priority. There is no doubt it was a significant feature in the determination of Mushin J and must also have been a significant point of determination in the consent orders which were made in 2009.
The Act imposes an obligation on the Court to consider the primacy of parents which is unambiguous in the legislation. That does not necessarily mean that the child should live with that parent. It is one of the significant factors in which the Court is to have regard.
There is no evidence that the mother has addressed the issue of violence and abuse. It was in fact an area which was not the subject of any submission by the mother. That is a troubling aspect of the mother’s claim.
A submission was made on behalf of the father that the mother’s lifestyle is somewhat unstable. I am satisfied (for the purpose of this argument) that the mother has had relatively stable accommodation since June 2007. I have set out the factual history of this elsewhere in these reasons.
However, there are some aspects of the mother’s lifestyle which are troubling. One is that in the mother’s application she seeks permission to move as and when she wishes to do so. In her submission she says that she is settled in her current address for the foreseeable future. Notwithstanding that concern, she argues that it is a normal function of life (particularly for military and others) to move every two years or so. What was clear from the decision of Mushin J was that this child needed stability.
When one analyses the mother’s claim, at its best, she proposes to move the child from a very involved family (on both parents’ sides), a stable school environment to a small community to which the mother has only been involved in since August of last year.
The child’s contact with his extended family and father would be significantly circumscribed by any such move. There was no satisfactory explanation given as to why the mother could not move back to Tasmania and obtain work back in this state in the child care industry. There was no evidence of any particular ties in South East Queensland (the mother’s partner, she says is no longer a part of her life) and yet she determined to live in South East Queensland notwithstanding that it is hundreds, if not thousands of kilometres, from where the child lives.
In submissions made directly by the paternal grandparents, they conceded that if the mother lived in Tasmania, they would put in place much better arrangements for the child to spend more time with the mother.
Having regard to all of those circumstances, the mother’s case is not particularly strong, nor is it convincing, notwithstanding her assertions as to the views of the child. Accordingly, and having regard to the material before me, I propose to dismiss all outstanding applications and bring this litigation to an end.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 February 2011.
Associate:
Date: 25 February 2011
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