Gage & Masalis

Case [2022] FedCFamC1F 431

Federal Circuit and Family Court of Australia

(DIVISION 1)

Gage & Masalis [2022] FedCFamC1F 431

File number(s): MLC 3393 of 2021
Judgment of: WILLIAMS J
Date of judgment: 20 June 2022
Catchwords: FAMILY LAW – PARENTING – Relocation – Where the mother unilaterally relocated with the child from Victoria to Tasmania – Where the decision was not child focused – Evidence of the child’s living circumstances in Tasmania was not forthright, does not promote a sense of housing security or that the child is well-settled – Both the maternal and paternal extended families live in close proximity to the father’s home and the child has no family in Tasmania except for the mother – The child has a close relationship with both parents, however the father is best placed to be able to provide stability and consistency for the child into the future – Where the considerations for relocation are finely balanced – Orders made for the child to return to Victoria – Orders made for the child to live in a week about arrangement in the event the mother returns to Victoria or alternatively school holiday time in the event the mother remains living in Tasmania.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

A v A: Relocation Approach (2000) FLC 93-035

AMS v AIF (1999) 199 CLR 160

Cowley & Mendoza [2010] FamCA 597

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

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

Re F: Litigants in Person Guidelines (2001) FLC 93-072

Sigley & Evor [2011] FamCAFC 22

Taylor & Barker [2007] FamCA 1246

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 187
Date of hearing: 16–17 & 19 May 2022
Place: Melbourne
The Applicant: Litigant in person
Counsel for the Respondent: Ms Ryan
Solicitor for the Respondent: Murdoch Clarke

ORDERS

MLC 3393 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GAGE

Applicant
AND:

MS MASALIS

Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

20 JUNE 2022

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The parties have equal shared parental responsibility for X, born 2016 (“the child”).

3.The child live with the father as from 4 July 2022.

Spend time arrangements in the event the mother remains in Tasmania

4.Unless otherwise agreed in writing, the child spend time and communicate with the mother as follows:

(a)in Victoria, on the provision of two (2) weeks’ written notice to the father of the proposed dates, at times agreed between the parties;

(b)in Tasmania as follows:

(i)In the Victorian gazetted school holidays:

A.in the Term 1 school holidays from the Saturday after school term ends for a period of nine (9) nights;

B.in the Term 2 school holidays from the Saturday after school term ends for a period of twelve (12) nights;

C.in the Term 3…

Continue reading Gage & Masalis

Sign in free to access the full text

Details
AGLC
Gage & Masalis [2022] FedCFamC1F 431
Case
[2022] FedCFamC1F 431
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Gage & Masalis involved a dispute between the parents of a child born out of their relationship. The father sought for the child to return to living with him in Region D, while the mother sought for the child to remain in Tasmania where she had relocated. The court had to determine the primary considerations under section 60CC of the Family Law Act, including the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. The court found that the child would benefit from a meaningful relationship with both parents and that there was no evidence of harm in either parent's care. The court also considered the stability that the father could provide the child and the fact that the mother had not demonstrated any long-term housing plan despite her best endeavours to do so. The court ultimately determined that the mother would return to the Region D area with her daughter and that a shared care arrangement would enable the child's meaningful relationship with both parents to flourish.

The court examined the evidence and submissions of both parties and found that the mother's evidence was contradicted by her oral evidence in cross-examination. The court also considered the submissions of counsel for both parties and the relevant legal principles. The court concluded that the benefit to the child of having a meaningful relationship with both parents was a primary consideration and that the child would benefit from a shared care arrangement. The court also found that the father's proposed arrangement would provide the child with stability and a sense of identity and connection with her family. The court ultimately determined that the child's overall best interests would be served by returning to live with the father in Region D and having a shared care arrangement with the mother.

The court made orders for the child to return to live with the father in Region D and for a shared care arrangement to be put in place. The court also made orders for the parties to cooperate with the recommendations of the family consultant, including obtaining therapeutic counselling if the child was in the father's primary care. The court emphasised the importance of the child having a meaningful relationship with both parents and the need for the parties to put the child's best interests first. The court also noted that the mother had the opportunity to be honest about her motives when she initially travelled to Tasmania but had not done so and remained there by subterfuge. The court's decision was based on the evidence and submissions before it and the relevant legal principles.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The trial was originally scheduled to commence on 24 March 2022, however the mother contracted Covid-19 and was unable to participate in the trial. The adjourned trial commenced on 16 May 2022 and proceeded electronically as the father was located at F Town and the mother and her legal advisers in City B.Background The father is aged 33 and is employed in allied health. He is also an artist and musician. He has re-partnered and has a 22 month old daughter with his new partner, who is currently pregnant with another child. The mother is aged 26 and is a part-time student at the S University completing a bridging course. She has re-partnered. The parents were in a relationship from around July 2014 until April 2015. At the time of the relationship both parties lived in the F Town area, where the mother remained living, until her departure to Tasmania in September 2019. The father remains living in F Town. The child was born in 2016 after the conclusion of the parental relationship. Following the child's birth she lived with her mother and spent time with her father as agreed between the parents. When the child was 18 months old she began to spend overnight time with her father and by the time she attained two years of age, according to the mother, her time with her father increased to 2–3 nights per week. According to the father, from January 2018 his time with the child increased so that she spent 2–4 nights a week with him, including a two week stay during Easter 2018. Both parents agree prior to the mother's departure to Tasmania, their relationship was amicable, they were able to successfully co-parent and spending time with both parents frequently was beneficial for their daughter. In September 2019, the mother advised the father that she wished to travel with the child to Tasmania for a holiday. The father consented, relying on assurances from both the mother and her partner that the travel to Tasmania would be temporary and the child would return to live in the F Town area. According to the mother, in around January and February 2020 she formed an intention to remain in Tasmania with the child and advised the father of her unilateral decision. Both parties agree that the father did not consent to the child remaining in Tasmania. According to the father, prior to attending a series of mediations via zoom in June and July 2020, the mother unilaterally imposed a regime whereby the child would spend 10 days a month with her father. Subsequent to mediation, the parties agreed on a short-term equal care arrangement so that the child would spend a month with each parent and fly interstate to effect change over. At mediation the parties entered into a parenting plan reflecting this arrangement. Due to Covid-19 travel restrictions between states, both the parents have spent significant periods without seeing the child. The child has travelled between Victoria and Tasmania on numerous occasions between November 2019 and the date of the trial. The child's travel is referred to in greater detail later in these reasons.The proposals of the partiesThe father’s proposal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Lastly, the mother's evidence in paragraph 10 of her affidavit filed 17 February 2022 that she is a part-time on campus student at the S University, was contradicted by her oral evidence in cross-examination that she is studying online. She presumably would have no difficulty continuing with her studies if she moved from Tasmania. Conclusion In support of the mother’s application for the child to remain living with her in Tasmania, counsel for the mother submitted:(a)to separate the child from her mother, her primary attachment would be emotionally and psychologically detrimental to the child;(b)the child has maintained a close and loving relationship with her father and extended family, notwithstanding relocation;(c)the mother’s commitment to the child’s future relationship with her father is demonstrated by her efforts to enable time between the child and her father subsequent to her unilateral relocation;(d)the travel commitments including financial impost, are not overly onerous and reasonably predictable;(e)the child is settled in her new environment, including her school and friends;(f)the relationship proposed by the father is optimal, and the court is not required to ensure a relationship is optimal, rather meaningful;(g)the mother demonstrated genuine distress at the prospect of return to Region D. In support of his application for the child to return to Region D, the father submitted:(a)the optimal relationship for the child would be to live with her father as her primary carer;(b)the child has been proud to be a member of a large and extended family since a very young age;(c)her extended family unit is of the utmost importance to the child;(d)she has deep ties to her small regional community;(e)her current circumstances in Tasmania are that she lives in an isolated location in a small van or renovated bus, surrounded by strangers, although she has had some experience of living in multiple rental properties;(f)the mother has not demonstrated any long-term housing plan despite her best endeavours to do so;(g)the mother has not been forthright about the child’s location and living circumstances to either the court or the father;(h)the current accommodation in the renovated bus may be suitable in the short term, but the mother has failed to demonstrate any long-term planning for the child’s living arrangements;(i)despite the court case concluding, the mother has failed to provide sufficient photographs of the actual living circumstances of the child, and it is impossible to know what they are;(j)in contrast, the father has lived in stable accommodation in close proximity to extended family and will continue to do so;(k)the child’s experiences since unilateral relocation to Tasmania should be seen through her eyes, namely she was removed from a tight loving intact family and community to a transient lifestyle, and now lives in a bus in remote bush, which she says she does not like;(l)the visits to her father and extended family are rushed and she does not have sufficient time to relax with her family and find her identity and place in the family unit;(m)the opportunity to spend time with her sister and the baby on the way are limited to school holidays, some of which do not coincide between states;(n)living in her father’s home will provide a sense of identity and connection with her family including extended family members, whom she will see on a regular basis;(o)the child will attend a local primary school and will be able to reconnect with children in the community;(p)the child will have her own room in the father’s home and will be part of a family with siblings;(q)the mother’s willingness to move to Tasmania was a lifestyle choice for herself and not made with any consideration of the best interests of the child;(r)the mother had the opportunity to be honest about her motives when she initially travelled to Tasmania, but she did not do so and remained there by subterfuge;(s)the mothers position of having experienced trauma only came to light after she made a decision to remain in Tasmania;(t)the father would cooperate with the recommendations of the family consultant, to obtain therapeutic counselling if the child was in his primary care.

Ratio Decidendi

Legal Principle Established

An order for shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person. In this case, both parents seek an order for equal shared parental responsibility. I address equal shared parental responsibility later in these reasons. Primary Considerations The benefit to the child of having a meaningful relationship with both of the child's parents There was no dispute the child would benefit from a meaningful relationship with both parents. The primary issue for determination was the father’s contention the child should be returned to Region D because that would maintain and improve a prospective meaningful relationship between the child, himself and extended family. If the mother remained living in Tasmania, then that would of course impact the child’s relationship with her mother. In Sigley & Evor [2011] FamCAFC 22, the (then) Full Court of the Family Court referred to the following propositions concerning s 60CC(2)(a):(a)a meaningful relationship is one “which is important, significant and valuable to the child” (Mazorski v Albright [2007] FamCA 520, Brown J at [26]);(b)the enquiry is “prospective” which requires a court to consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (McCall & Clark (2009) FLC 93-405 at [118]). Counsel for the mother cast the father’s application in terms of seeking an optimal relationship with the child, not just a meaningful relationship. I do not accept that categorisation and consider the father’s case was based on the child’s overall best interests, particularly the stability which the father is able to provide the child. There is no dispute the child has a close and positive relationship with her father, however the child was removed to Tasmania in September 2019 and since that time has spent frequent time with her father in Region D, for longer periods than the future time proposed by the mother. If the child returns to live with the father in Region D and the mother remains in Tasmania, there will be a change in the nature of the relationship between them, although I am confident the relationship will continue to be meaningful. Despite the mother’s position at trial, I do not accept she would once again prioritise her perceived needs over her relationship with her daughter and remain in Tasmania. For reasons referred to subsequently, I am confident the mother will return to the Region D area with her daughter. That will enable the child to live in a shared care arrangement and her meaningful relationship with both parents will flourish.The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse Neither party contended the child was at risk of harm in the other parent’s care, on a day to day basis. The mother's evidence was that she had no welfare concerns for the child in her father's care and she considers the father to be a caring loving and patient father.