Gowrie and Springer
[2018] FCCA 1072
•20 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOWRIE & SPRINGER | [2018] FCCA 1072 |
| Catchwords: FAMILY LAW– Parenting – Interim orders – one child aged 9 years – mother unilaterally relocated – whether the child should live with the mother or father – how much time the child should spend with non-live with parent – whether Court should make coercive order for the mother’s return with the child – best interests of child. |
| Legislation: Family Law Act 1975 (Cth) Pt VII |
| Cases cited: Oswald & Karrington (2016) FamCAFC 152 |
| Applicant: | MR GOWRIE |
| Respondent: | MS SPRINGER |
| File Number: | NCC 319 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing date: | 13 March 2018 |
| Date of Last Submission: | 13 March 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 20 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Flintoff |
| Solicitors for the Applicant: | East Coast Law |
| Counsel for the Respondent: | n/a |
| Solicitors for the Respondent: | Carolyn Kelly Legal |
ORDERS
The child [X] born 2009 (“the child”) live with the Mother.
The parents have equal shared parental responsibility for the child.
On or before 1 May 2018, the Mother and child are to relocate back to the Town A area.
The parties are to do all things necessary, including signing any documentation required to re-enrol the child into School A in Town A.
The child spend time with the Father as agreed in writing between the parents and failing agreement no less than:
(a)Each alternate weekend from 5.30pm Friday until 5.00pm Sunday;
(b)In the alternate week from conclusion of school until 7.00pm on Thursday;
(c)For one half of the New South Wales school holiday period being the first half in even numbered years and the second half in odd numbered years;
(d)On the child’s birthday from the conclusion of school until 5.00pm if a school day or from 9.00am until 1.00pm if a non-school day;
(e)On the Father’s Day weekend from 5.30pm Friday until 5.00pm Sunday.
To facilitate time changeover will occur at school if a school day or at the Mother’s home if a non-school day.
The Father’s time with the child will be suspended on the Mother’s Day weekend so that the child can spend Mother’s day with the child from 5.30pm Friday until 5.00pm Sunday.
On 25 May 2018 at a time to be advised, the parties and the child are to attend a child inclusive conference with a family consultant in Town B pursuant to section 11F(1) of the Family Law Act 1975.
The parties are advised that if a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:
(a)The Order made by the Court; or
(b)Any instruction the consultant gives to the person; the consultant must report the failure to the Court.
On receiving the report, the Court may make any further Orders it considers appropriate.
The Court may make Orders under section 11F(2) :
(a)On its own initiative; or
(b)On the application of:
(i)A party to the proceedings; or
(ii)A lawyer independently representing a child’s interests under an order made under section 68L.
The Respondent is granted leave to file an Amended Affidavit and Notice of Risk.
The matter is adjourned to 9.30am on 9 October 2018 in Wauchope for directions hearing.
IT IS NOTED that publication of this judgment under the pseudonym Gowrie & Springer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 319 of 2018
| MR GOWRIE |
Applicant
And
| MS SPRINGER |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter concerns parenting arrangements for [X] born 2009.
It came before me by way of an interim hearing in circumstances of some urgency.
The Applicant Father is 31 years of age and he filed his Initiating Application on 5 February 2018.
The matter first came before me on 14 February 2018. On that occasion I ordered the mother, aged 26, to file her Response, Affidavit and Notice of Risk by no later than 9 March 2018, and I adjourned the matter to 13 March 2018 at Wauchope.
When the matter came before me on 13 March 2018 the mother had not filed her material. A local lawyer, Ms Kelly, appeared amicus to assist the mother. I adjourned the matter to 14 March 2018 to afford the mother the opportunity to properly instruct Ms Kelly.
When the matter came before me on 14 March 2018, I accepted into evidence, by consent, the mother’s Response and Affidavit. No Notice of Risk was tendered.
The matter was urgent because the mother had unilaterally relocated to Town C in Queensland during the Christmas school holiday period and when the matter was first before me on 13 March 2018, I provided a preliminary view to the mother, through her lawyer, that I believed it was in the best interests of [X] for the mother to return to Town A.
In short, I put Ms Kelly and the mother on notice that I was considering a coercive order, although neither party sought such an order.
The issues
The issue are as follows:
a)Is it in the best interests for the child to live with the mother or the father?
b)How much time should the child spent with the non-live with parent? And
c)Are there rare and extreme circumstances such that invoke the court’s power to make a coercive order?[1]
[1] See Oswald & Karrington (2016) FamCAFC 152.
The material
The father relied upon the following:
a)His Initiating Application filed on 5 February 2018;
b)His Affidavit filed on 8 March 2018; and
c)His Notice of Risk filed 5 February 2018.
The mother relied upon her Response tendered on 14 March 2018 and her Affidavit tendered on the same day.
The law
As this matter involves parenting arrangements, Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies. Informed by the objects and principles found within section 60B, I must make orders that are in the best interests of the child. His best interests are my paramount concern.[2]
[2] See Family Law Act 1975 (Cth), section 60CA.
In making orders that are in the best interests of the child, I must consider the relevant matters contained within section 60CC.[3]
[3] See Goode & Goode (2006) FamCA 1346, Sayer & Radcliffe (2012) FamCAFC 209 and Oswald & Karrington (2016) FamCAFC 152.
The Act does not set out any different or extraordinary considerations when considering relocation cases. Authorities over the years have set principles to be followed when considering such cases.
In AMS v AIF (1999) FLC 852, the High Court held that a person wishing to relocate need no show compelling reasons. Similarly, the majority in Malcolm & Monroe and Anor (2011) FLC 93 460 found it was not necessary for the person seeking to prevent a proposed relocation to show compelling reasons.
The authorities have often held that there is a legislative intent for a child to spend substantial and significant time with both parents.[4]
[4] See for example Taylor & Barker (2007) FLC 93 345, McCall & Clark (2009) FLC 93 405, and Morgan & Miles (2007) FamCA 1230.
I must consider the parents’ right to freedom of movement pursuant to section 92 of the Constitution in light of the child’s best interest, noting again it is the child’s best interest that is my paramount concern.
In Campbell & Spalding (1998) FamCA 66, Warnick said:
‘In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.’
This statement is not to be read without context. The evidence must establish that the mother’s relocation has significantly altered the relationship for one of the child’s parents.
Boland J in Morgan & Miles [2007] FamCA 1230 at 88 said:
‘It appears to me that the very difficult issues in cases involving a relocation…make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.’
With the exception of Morgan & Miles[5] and Campbell & Spalding[6], all of the authorities referred to above involve final hearings. Both of these appeals concerned an appeal from an order at first instance requiring the mother to return to her former relocation and remain there until final hearing. Boland J in Morgan & Miles[7] said:
‘It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.’
[5] [2007] FamCA 1230
[6] (1998) FamCA 66
[7] [2007] FamCA 1230 at 55.
I absolutely, wholeheartedly agree. If it were otherwise, with this court’s enormous workload and subsequent delays between filing and hearing times, a parent could deprive a child from having its best interests properly considered by simply leaving town before the first mention date.
There is a clear legislative intent for children to spend substantial and significant time with both parents and have a meaningful relationship with both parents.
It is indeed illogical to suggest that an unauthorised unilateral move should be permitted so as to prevent a court from properly considering and making a determination about the child’s best interest unless there is some form of emergency.
There was no emergency outlined in the mother’s material.
Perhaps it is even more counterintuitive in circumstances where section 61DA(3) provides that the presumption in section 61DA(1) applies when a court is making an interim order unless it would not be appropriate in the circumstances for the presumption to be applied.
Shared parental responsibility requires parents to jointly make decisions about major long-term issues for the child.[8]
[8] Family Law Act 1975 (Cth) s 65DAC
Section 4(1) of the Act[9] defines major long-term issues to include but not limited to issues about:
a)the child’s education;
b)the child’s religious and cultural upbringing;
c)the child’s health;
d)the child’s name; and
e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
[9] Family Law Act 1975 (Cth)
But for the issue of the child’s name, the evidence establishes that the other issues named are in play in this matter.
The proposals
Turning to the proposals, the father’s proposing on an interim basis was this:
4)‘Within 48 hours of the date of these orders, the respondent do all such things and sign all documents to cause the child [X] born 2009 (“[X]”), to be returned to Town A, New South Wales.
5)In the event the respondent returns to Town A with the child, the child is to continue to live with her. In the event she does not, the child is to live with the applicant.
6)In the event the child lives with the applicant, the child shall spend time with the mother for one half of the New South Wales school holidays, being the first half in even-numbered years and the second half in odd-numbered years with changeover to occur at McDonald’s.
7)In the event the child lives with the respondent mother, the child shall spend time with the father as follows:
1)During New South Wales school terms, each alternate weekend from 5.30 pm on Friday until 5 pm on Sunday, and in the alternate week, from the conclusion of school until 7 pm on Thursday.
2)For one half of the New South Wales school holiday period, being the first half in even-numbered years and the second half in odd-numbered years.
3)On the child’s birthday from the conclusion of school until 5 pm if a school day or from 9 am to 1 pm if a non-school day; and
4)On Father’s Day weekend from 5.30 pm on Friday until 5 pm on Sunday. To facilitate the time in order 7, changeover would occur at school if a school day or at the mother’s home if a non-school day.’
The mother’s proposal was as follows:
1)That the child of the relationship, [X], born 2009, is to live with the mother.
2)The mother is permitted to relocate with the child to Region 1. The mother is restrained from relocating the child’s residence to a distance further away from the father than the Region 1.
3)Unless otherwise agreed, the child is to spend time with and communicate with the father as follows.
(i)Each alternate weekend, the first such visit to occur in the area where the child lives from 5 pm Friday to 5 pm Sunday; the second such visit to take place in Town A, Hastings district from 12 noon on Saturday to 2 pm Sunday; handover to take place on each occasion at the home of the relevant parent.
(ii)For 2/3 of each Queensland school holiday period at times to be agreed, handover to take place at a point equidistance between the parents’ residences.
(iii)The child is to be with the mother on his birthdays, at Christmas, on the mother’s birthday and Mother’s Day; and
(iv)Liberal telephone/Skype/FaceTime communication as agreed but, failing agreement, each Tuesday and Thursday at 6 pm.
4)The mother shall forthwith procure and the parents shall thereafter maintain a communication book to facilitate communication between the parents in respect of issues relating to the child and each parent shall relay important information concerning the child to the other by way of written notification in the communication book which will travel with the child at changeovers.
5)Other than to explain the effect of these orders to the child, each parent is to restrain from discussing any aspect of this litigation with the child.
6)Each parent shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline, telephone number, mobile telephone number and email address.
7)Each parent, insofar as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural and extracurricular events in which the child is to participate.
8)Each parent is restrained from causing or permitting the infliction of corporal punishment upon the child.
9)Each parent is restrained from permitting the child to refer to any other person other than the biological parents by use of such terms as “mum” or “dad” or similar.
10)The parents are to authorise the principal of the school attended by the child from time-to-time to provide to each parent upon issue a copy of each school report, school newsletter, school photographs, report on progress and/or performance or behavioural issues at school, any notification of events affecting the child and events to which parents are normally invited, including parent/teacher nights and sporting and social occasions, service of a copy of the sealed orders upon the principal of the school is sufficient compliance with this order.
11)The father is at liberty to attend parent/teacher interviews and other student-focused events held at the schools attended by the child.
12)In the event of any significant occasion or event that the parents wish the child to attend, such as a birthday, Christening, or wedding, the parent wishing to make that request must do so in writing, providing three weeks written notice to the other parent. The other parent must not withhold their consent unreasonably in this regard and must respond within three days of the request being made.
13)These orders will be sufficient authority for any medical practitioner or Allied Health professions who may treat the child from time-to-time to speak freely with both parents about the child and provide either parent with any information he or she may reasonably request about the child and any diagnosis and treatment the child may be receiving; and
14)The parents must speak respectfully to each other in the presence of the child and greet each other cordially when they meet.’
Application of the law to the evidence
It is apparent from the orders sought by both parties that:
1)Neither party seeks an order for parental responsibility; and
2)Neither parent seeks a coercive order.
As I said from the outset, it is whether a coercive order is warranted and in the best interests of the child.
I am not bound by the parties’ proposals. I must make orders that are in the best interests of the child.
I can only make an order outside of the parties’ proposals provided there has been procedural fairness.[10]
[10] See U & U (2002) FLC 93 112.
As I said earlier, I told the mother on 13 March, through her lawyer, that my preliminary view was that she should return with the child.
Her material was filed after that date and her solicitor made submissions about her return.
In those circumstances, I am satisfied that procedural fairness has been afforded to the mother.
As this is an interim hearing, I will follow the pathways set out by the Full Court in Goode & Goode [2006] FamCA 1346 at paragraph 82.
I have already set out the competing proposals and have identified the issues in dispute.
Turning to the evidence, the father filed a Notice of Risk and set out in that document his concern about the lack of stability for the child due to the mother moving.
The father say the mother has moved 10 times since separation and has now unilaterally relocated the child interstate.
It is not in dispute that the child has spent time with the father consistently and regularly since the child was born.
What is in dispute is how much time. The father says he spent every weekend from Friday through Monday until the child commenced school.
The parties were able to enter into a parenting plan in December of 2014 prior to the child commencing school.
The father says after a few months that parties agreed to alter the plan so as the child spent time with his father two weeks in a row, one week off and then two weeks in a row, with that time continuing until December 2017 when the mother unilaterally relocated.
The father also spent time with the child between 27 December 2017 and 20 January 2018. The mother says in relation to time:
‘Mr Gowrie has only ever really spent alternate weekends with [X]. At times he would visit him in Town D for an hour or so… [F]or a time he spent every weekend with him but this changed because I wasn’t getting any weekend time. Mr Gowrie has seemed to me to only spend time with [X] when it suits him.’ [11]
[11] Mother’s Affidavit filed 13 March 2018 at 13.
I am persuaded on balance that the father has spent considerable time with [X] since birth and that as a result of the mother’s move, circumstances have altered significantly, such that it has the potential to impact upon the child’s relationship with his father.
It is not in dispute that the father poses no risk to the child. No Notice of Risk was filed by the mother.
It is not in issue that the child has been diagnosed with ODD, ADHD and ASD. It is not in dispute that that child engaged with support services in Town A - his paediatrician, Mr M, his behaviour specialist, Mr D and his occupational therapist.
Also not in dispute is that the child attended School A in Town A until the move to Town C.
It is in dispute how much the mother has moved. She says she has moved with the child seven times. The father says 10 times since early 2010. On the mother’s evidence this amounts to seven times in seven years and the father’s evidence 10 times.
I am satisfied that on any view of the evidence the mother has had some instability in her and the child’s housing since separation.
The father says there is a variety of listings in Town A/Town D area ranging from $250 per week available for rent.
The mother says she looked for 8 months below and above her budget prior to her move but ‘could find nothing.’
At the time of the hearing the father provided the mother’s solicitor with a number of pages displaying rental accommodation available in the Town A region. The mother’s solicitor sought instructions from the mother. The document was not subsequently tendered. However, submissions by the mother’s solicitor lead me to infer that a concession was made regarding availability by housing suitable by the mother.
The mother’s solicitor sought an adjournment during submissions, stating the mother would need time to move back to the Town A area, so as to secure a home.
In those circumstances, I am not satisfied that there are no suitable homes available in the Town A area.
The mother says she had work in Town A but was not getting many shifts, in summary. The mother also gave evidence in her affidavit that she has “now found work”. There is no independent evidence of any employment.
The mother says the child was bullied at school in Town A and he now “loves his new school”.
Again, no independent evidence was supplied by the mother in relation to either of those aspects.
The mother says she has made an appointment for the child to see a paediatrician on the Region 1. Once again, no independent evidence in support of that evidence was provided.
I am satisfied the child had suitable and appropriate services provided to him in Town A in the form of his paediatrician, his behaviour specialist and his occupational therapist. It is not in dispute that the child has services available to him in Town A in the form of his paediatrician, his behaviour specialist and his occupational therapist.
It is not in dispute that the child has lived with his mother all of his life.
It is also not in dispute that the mother has a daughter from a subsequent relationship who is now approximately three years of age and who lives with the mother.
The mother’s solicitor made submissions that due to the child’s diagnosis, he requires stability more so than children without the diagnosis.
Whilst autism is now described as a spectrum disorder, it is very common knowledge that children who suffer from ODD, ADHD and ASD often struggle with change.
As the mother made that submission and the father gave evidence that [X] does not cope with change well[12] I can find as a fact that [X] does not cope with change and requires stability.
[12] See paragraph 21 of father’s Affidavit filed 8 March 2018.
In circumstances where there is a body of information on this topic and I have heard many, many cases involving children with a similar diagnosis, I am of a view that I can take judicial notice of this matter.
Section 60CC(2)(a):
I am satisfied that this child has always lived with his mother and spends substantial time with his father.
In circumstances where the mother raises no risk and the father raises a concern about the lack of stability in the mother’s home only, I am satisfied it is in the best interests of [X] that he has a meaningful relationship with both parents.
Section 60CC(2)(b)
The evidence does not establish that there is a risk of harm in either parent’s sufficient to warrant protection.
Section 60CC(3)(b)
The child has a relationship with both of his parents. He would have a relationship with his half-sister. The father lives with his grandfather and in those circumstances, the child would have a relationship with him. The mother lives with a friend; the child may have a relationship with her.
Section 60CC(3)(c)
I am satisfied that both parents have taken the opportunity to participate in making decisions, spend time and communicate with the child prior to the mother’s relocation.
The mother makes a complaint that the father has only attended a handful of appointments with the child’s healthcare professionals. Nothing turns on that complaint.
The evidence satisfies me that the father is fully aware of the child’s condition and has participated in decisions regarding this.
Section 60CC(3)(d)
The mother’s proposal will see her remaining in Queensland, with the child spending each alternate weekend with the father – one weekend in Queensland, the other weekend in Town A – for a limited time, due to the fact that mother proposes to drive the 10-hour return trip.
That proposal substantially reduces the child’s time with his father in circumstances where the father has limited capacity to travel to Queensland due to budget constraints.[13]
[13] See the uncontested evidence of the father at paragraph 28 of his Affidavit filed 8 March 2018.
The proposal would have the advantage of not bringing about another change for the child but for the amount of time the child spends with the father.
It would, however, see a continuation in the significant changes that have occurred and come about due to the mother’s move. The child has changed schools, friends and will have a change, it seems, to his healthcare providers, all in circumstances where the question of whether that is in the child’s best interests is a live issue and one that should be determined at a final hearing.
The father’s proposal would see the child living with him if the mother does not return to Town A. If that were to happen, the child would be separated from his sibling, something that is generally not considered appropriate, and from his mother with whom he has lived his entire life.
Noting the child’s special needs arising from his diagnosis, I do not consider that proposal to be in the child’s best interests.
The father’s alternate proposal, should the mother return, would see a return to the child’s status quo and stability, with the only change being that the mother’s friend and flatmate may not return.
I am satisfied that it is in the child’s best interests for the mother and the child to be living in Town A until such time as the matter can be properly considered and orders made as a result of final hearing.
I can only make a coercive order requiring the mother to return in rare and extreme circumstances.
The circumstances of this case are rare in that the mother has already moved. There are no risks complained of by the mother. There are no emergency circumstances and the child has particular diagnosis that requires a finding as to whether the child could cope with such a move.
I have considered the alternative to a coercive order as outlined previously[14] I am satisfied, having so considered the alternatives, that the child and his mother should return to live in the Town A region.
[14] see D & SV (2003) FamCA 280 and Samson & Hartnett (No. 10) (2007) FLC 93-350.
I am persuaded by the mother’s submission that she will need time to find suitable housing and my orders allow for this time.
Section 60CC(3)(e)
There would be a practical difficulty and expense involved for the child to spend time with both parents if either of the parties’ primary proposals were adopted.
There will be no practical difficulty and expense involved if the mother complies with my order.
Section 60CC(3)(f)
But for the mother’s unilateral decision to move to Queensland, I am satisfied that both parents can provide for the needs of the child.
Section 60CC(3)(g)
The father is a (religion omitted).
The uncontested evidence is that the child has been involved in that faith since he was two.
The evidence establishes that the child (religious activity) with the father on Saturdays and goes to church on Sundays when the child spends time with the father.
The mother says the child:
‘…doesn’t like spending the weekends with his father on church-related activities. He doesn’t like going to door to door. He hates it.’[15]
[15] Affidavit of mother filed 13 March 2018 at para 19.
The father says the child has a good relationship with him and makes no comment about the child expressing his view.
As a result, the father’s lifestyle and religious beliefs and the child’s upbringing in those circumstances is an issue.
I cannot make a finding about this issue at this time on the evidence.
My orders provide for the child’s views to come before the Court. After that evidence has been tested, weighed and evaluated at final hearing, a finding of fact can and will be made.
Section 60CC(3)(i)
The mother’s unilateral decision did not take into account the potential disruption to the child. If she did take this into consideration, she provided almost no evidence about it in her Affidavit, save to say she was unhappy with the paediatrician and the child was bullied at school.
Apart from the unilateral decision to move, I am otherwise satisfied that the mother has shown a good attitude to her responsibilities as a parent.
The mother deposes that the father only spends time with [X] when it suits him and he only attended a handful of appointments for [X].
That evidence with regard to the child’s time with the father is not accepted by me. The fact that the child lives with his mother most likely says more about the father’s attendance at appointments than anything else. I am satisfied that the father has demonstrated a good attitude to his responsibility as a parent.
Section 60CC(3)(m)
It is relevant to consider the time it would take for the mother to find alternative accommodation.
Term 2 in New South Wales commences on 1 May 2018. That is five weeks from today. Term 1 in Queensland ends on 29 March. The time between the end of term 1 in Queensland and the start of term 2 will allow the mother four weeks to find a home and move.
I am satisfied that it is appropriate to allow that time.
Parental Responsibility
Turning to parental responsibility, neither parent sought an order for parental responsibility. However, the Act[16] provides that the presumption in section 61DA(1) applies unless the Court considers that it would not be appropriate to apply[17]
[16] Family Law Act 1975 (Cth)
[17] Ibid, s 61DA(3).
In Goode & Goode[18], the Full Court at paragraph 78 said:
‘The combination of the revised explanatory memorandum and the comments of the House of Representatives standing committee on legal and constitutional affairs suggests that section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner but only in circumstances where limited evidence may make the application of the presumption or its rebuttal difficult.’
[18] [2006] FamCA 1346
There is nothing in the evidence before me that would satisfy me that the application of the presumption would be difficult.
The parents have been able to engage meaningfully for the benefit of the child for seven years post-separation. But for this relocation, there have been no major disputes or if there have, they certain were not before me in evidence.
In those circumstances, I am satisfied that it is appropriate for the presumption to apply.
As I intend making an order for equal shared parental responsibility, the provisions of section 65DAA apply.
I must consider both whether it is in the best interests and reasonably practical for the child to spend equal time with the mother and father in the current factual matrix.
Currently, the child has never spent equal time with his parents.
This is an interim hearing. Whilst there is some evidence before me as to the parties’ capacity to communicate, their ability to be flexible, with whom and to what extent the child is primarily attached, the evidence is nevertheless scant.
As such, I am of the view it would be unsafe to make such an order in those circumstances and not in the child’s best interests.
Of course, the mother and child live in Queensland currently, something that makes an equal time order impossible.
I must consider whether an equal time order is reasonably practicable.
For the same reasons, as the mother and child currently reside in Queensland, I am satisfied it is not. The same findings are apposite when considering the father’s primary proposal which would see the child living in Town A.
I have indicated that I intend making an order for the mother to return to New South Wales. It is necessary for me to consider the provisions of section 65DAA in that context.
Apart from living closer together, many of the findings previously outlined also apply. It is important, in my view, that this child be afforded some stability and housing upon his return to the Town A area. This is an additional factor in finding, at this interim stage, that an equal time order is neither in the best interests or reasonably practicable for the child.
The evidence establishes that the child has spent time with his father on weekends during holidays and during school nights.
The father has been involved in the child’s daily routine and occasions and events and – of particular significance to the child, and the child is involved in occasions and events that are of specific significance to the father.
That amounts to substantial and significant time as identified in section 65DAA(3).
Stability at an interim stage is in the child’s best interests. The authorities say so.
The order that the father seeks amounts to a return to the “spend time” arrangement prior to the mother’s relocation.
In those circumstances, I am satisfied that it is both in the best interests and reasonably practicable for the child to spend substantial and significant time with his father.
I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 1 May 2018.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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