Grant and Curran
[2017] FCCA 1972
•23 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRANT & CURRAN | [2017] FCCA 1972 |
| Catchwords: FAMILY LAW – Relocation of child to the United Kingdom permitted – whereabouts of father unknown. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Sayer & Radcliffe & Anor [2012] FamCAFC 209 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MS GRANT |
| Respondent: | MR CURRAN |
| File Number: | PAC 1948 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 2 August 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 23 August 2017 |
REPRESENTATION
| Appearing for the Applicant: | Mr Layson |
| Solicitors for the Applicant: | Sarah Bevan Family Lawyers |
| Appearing for the Respondent: | No appearance |
ORDERS
That the mother, Ms Grant, shall have sole parental responsibility for the child [X] born 2010.
That the child shall live with the mother.
That the mother shall be permitted to relocate the child’s residence from the Commonwealth of Australia to the United Kingdom.
That the child shall spend time with and communicate with the father, Mr Curran, as agreed between the parents.
[X] born 2010 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to [X] born 2010. The mother shall be the only person with ‘parental responsibility’ of the child [X] born 2010 for the purposes of applying for, and being issued with, an Australian passport for [X] born 2010.
Remove all outstanding issues from the list of cases awaiting finalisation.
THE COURT NOTES THAT:
The mother intends to travel with the child to the Commonwealth of Australia on one occasion each year for the purpose of maintaining a relationship between the child and the extended maternal and paternal families.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Obradovic delivered this day will for all publication and reporting purposes be referred to as Grant & Curran.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1948 of 2017
| MS GRANT |
Applicant
And
| MR CURRAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings commenced by the Applicant mother, Ms Grant in relation to the child [X] born 2010 with the filing of an Initiating Application on 26 April 2017.
The Respondent to the proceedings is the child’s father, Mr Curran who has not filed any material in these proceedings.
The first return date of the Initiating Application was on 31 May 2017 where the Court made orders dispensing with the requirement for personal service of the Initiating Application and supporting material and that service be effected by forwarding the Initiating Application and supporting documents to the father via email and private message via Facebook. The Court also made orders for the mother to file and serve a consolidated Affidavit relevant to the issues for determination and that the matter be set down for a possible undefended hearing on 2 August 2017.
The mother filed an Affidavit of Service complying with the above orders for substituted service on 29 June 2017.
With no appearance by or for the father on 2 August 2017 the matter proceeded to undefended hearing. These are the Reasons for Judgment in relation to that hearing.
Orders sought by the mother
The mother seeks final parenting orders on an undefended basis as against the father that:
a)The mother have sole parental responsibility for the child;
b)The child live with the mother;
c)The mother be permitted to relocate the residence of the child to the United Kingdom;
d)The mother be permitted to obtain an Australian passport for the child without the consent of the father; and
e)The child spend time with and communicate with the father at times as agreed between the parents.
Documents relied upon
The mother relied upon the following documents:
a)Initiating Application filed 26 April 2017;
b)Affidavit of Ms Grant filed on 30 June 2017;
c)Affidavit of Mr S filed 23 May 2017; and
d)Affidavit of Ms J filed 29 June 2017.
The Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[3] Consideration does not mean discussion.[4]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[4] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities. The Full Court in Malcolm & Munro[5] approved what was said by Justice Boland in Morgan & Miles[6], particularly at paragraphs 79 to 81, where her Honour said as follows:
[5] (2011) FLC 93-460
[6] (2007) FLC 93-343
79. In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
that the child’s best interests remain the paramount but not sole consideration;
that a parent wishing to move does not need to demonstrate “compelling” reasons;
that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
In Sayer & Radcliffe and Anor[7] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
[7] [2012] Fam CAFC 209 at [47]
Furthermore, the High Court[8] has recently stated, being a reminder of the discretionary nature of parenting decisions, that[9]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[8] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[9] These were obiter comments in the context of an appeal with considerations different to the present case
The mother’s case
The mother was born 1991 and is currently 26 years old.
The father was born 1988 and is currently 28 years old.
The parties met in around 2009 and commenced a relationship shortly thereafter.
The only child of the parties was born 2010 and is currently 7 years old.
The parties commenced cohabitation in 2013.
The parties separated on a final basis on 14 December 2013.
The mother commenced a relationship with her current partner Mr S in around 2014.
The mother’s partner was born in the United Kingdom and came to Australia for work in July 2013. Mr S returned to the United Kingdom in January 2014 and returned to Australia on 31 December 2014 initially on a working holiday visa and then on a sponsored visa from his employer. The mother and Mr S commenced cohabitation in August 2016 in Australia.
The mother says that the father spent time with the child intermittently following their separation and that the longest period of no time between the father and the child was approximately three months.
From March 2014 the child began spending time with the father each alternate weekend from Friday afternoon until Sunday. The mother would deliver the child to the paternal grandparent’s home in (omitted) where the father was residing. The mother says that the father was very rarely in attendance at the home for the child’s time with him. The child has not spent any time with the father since April 2016.
The mother says that the child is performing well at school and enjoys playing sport and going on outings with the mother and Mr S. The mother is not aware of any extracurricular activities that the father was involved with.
The mother and child have not spoken to the father since 3 June 2016 and the mother is unsure of the father’s whereabouts.
The mother maintains a good relationship with the paternal grandparents with the paternal grandparents having looked after the child for a period of three weeks over Christmas 2016.
The mother says that Mr S is very involved with the child’s daily routine and extra-curricular activities. He assists with homework, staying home if the child is unwell, playing games and reading.
The mother says that in the past the father has been aggressive and controlling of her by sending abusive text messages, accusing her of affairs and that he would go through her phone to check messages. She says that he sometimes threw furniture across the room in arguments and that he threw a laptop against a wall in front of the child.
The mother says she ended the relationship with the father because of his aggressive behaviour. To her credit she concedes that the father has never been violent towards the child and that the father “loved” the child very much.
Relocation to the United Kingdom
The mother wishes to relocate the child’s residence to the United Kingdom with herself and Mr S. Mr S purchased a three bedroom home in (omitted), England in February 2017 with the intention of the mother and child moving with him.
The mother does not currently have employment in the United Kingdom but says that Mr S is able to financially support her and the child and that she intends on actively pursuing employment if able to relocate with the child.
The mother has made enquiries with a prospective school for the child and hopes to be able to relocate by September 2017 when the new school year in the United Kingdom commences.
The mother intends on returning to Australia at least once a year with the child to maintain a relationship with the maternal and paternal family and says that she will facilitate communication via Skype, telephone and Facetime with members of the extended families if able to relocate.
Whereabouts of the father
On 5 April 2016, the father notified the mother via email that he was going overseas for work. He did not specify where he was going only that he would be returning at Christmas that year to ‘take care of’ the child while the mother and Mr S were travelling overseas as had been agreed to between the parents in January 2016. The father left Australia on 25 April 2016. The next time and only time since the mother heard from the father was a day prior to the child’s birthday, on (omitted) 2016, when he called to speak to the child.
In September 2016, the mother contacted the paternal grandmother to enquire where the father was and if he’d be returning at Christmas that year. The paternal grandmother indicated that there had been no contact with the father for about 7 months. The mother subsequently tried to contact the father via Instagram and email however, he did not respond. The father did not return to Australia at Christmas 2016 as he had indicated, and the child stayed with the paternal family during that period of time the mother was away overseas.
The mother says that she has tried to contact the father since to advise him of her intention to relocate with the child to the United Kingdom via Facebook and email however no response has ever been received.
On 4 June 2016 the mother hosted a birthday party for the child where a number of family members from the paternal family attended. The mother asked them on that day if they had heard from the father and none of them had or knew where he was. The Father did not attempt to contact the child on his birthday.
The last known whereabouts of the father appears to have been in the (omitted country) in September 2016 where he was studying at the (omitted) School. This is what appears from the father’s Facebook posts, however, the father has not in fact notified the mother at any time since she last spoke to him in June 2016 of where he is living.
Other relevant matters
The mother has been the child’s primary carer since his birth. The child has a strong and loving relationship with the mother, her current partner, and their extended families. The child also has a strong and loving relationship with the paternal extended family.
Despite the difficulties which the mother has encountered in contacting the father over the past 18 months, she has encouraged and maintained the child’s relationship with the paternal family.
Until the father left Australia in April 2016, the mother had also facilitated and encouraged a relationship between the child and the father. Since then because of the father’s absence from the country, his lack of contact with the mother, the child and the paternal family, time between the child and the father has not been possible.
The Court finds that the mother will continue to promote a relationship between the child and the father, and between the child and the paternal family notwithstanding her intended relocation to the United Kingdom.
There are certainly going to be practical difficulties and expense with the child spending time with the father if the child is living in the United Kingdom and the father is not. However, the father’s lack of involvement with the child over the last 18 months in particular leads the Court to a conclusion that any future lack of involvement between father and child is likely to be the result of the father’s doing, and not the mother’s relocation. The mother has to date shown a clear willingness to facilitate a relationship and the Court accepts that she will do so in the future for the child’s sake. The mother recognises the importance of the relationship with the father to the child.
The father has shown a poor attitude to the child and to his responsibilities of parenthood by absenting himself from the child’s life in the manner that he has. The mother has a demonstrated capacity to provide for and meet the child’s needs, while the father does not. The father is in arrears in respect of his child support payments.
The mother has been in a loving and supportive relationship with Mr S for a number of years. The mother’s happiness is a factor which the Court also takes into consideration.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Jurisdiction
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Remedies
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