Harden & Sempers

Case [2023] FedCFamC1F 210

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Harden & Sempers [2023] FedCFamC1F 210

File number: MLC 2875 of 2014
Judgment of: MCGUIRE J
Date of judgment: 17 March 2023
Catchwords: FAMILY LAW – PARENTING – Relocation - Application by mother to relocate interstate with child – Application opposed by the father – Alleged contraventions of spend time with orders - Orders that child be permitted to relocate with mother – Orders that parents have equal shared parental responsibility for the child -Orders that the child spend time with the father during school holidays – Orders that child communicate with the father
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC and 65DAA
Cases cited:

Champness & Hanson [2009] FamCAFC 96

G & C [2006] FamCA 994

Goode & Goode [2006] FLC 93-286

KB & TC (2005) 33 Fam LR 471

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92

Paskandy & Paskandy (1999) FLC 92-878
Division: Division 1 First Instance
Number of paragraphs: 91
Date of hearing: 17 March 2023
Place: Melbourne
Counsel for the Applicant: Mr Weerappah
Solicitor for the Applicant: Bayside Solicitors
Solicitor for the Respondent: Litigant in person

ORDERS

MLC 2875 of 2014

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

MS SEMPERS

Applicant
AND:

MR HARDEN

Respondent

order made by:

MCGUIRE J

DATE OF ORDER:

17 MARCH 2023

THE COURT ORDERS THAT:

1.The current but discharged orders dated 18 November 2014 will continue in full force and effect until the mother’s relocation of X.

2.All previous parenting orders in relation to the child X born 2012 be discharged.

3.The mother, Ms Sempers and the father, Mr Harden have equal shared parental responsibility for X.

4.X live with the mother.

5.Not before the end of first term in the current year 2023 but provided that X spend not less than one week of the first term holidays with the father, then the mother be permitted to relocate X’s primary place of residence from C Town in Victoria to D Town in Queensland.

6.Upon the mother’s relocation of X to Queensland, X spend time and communicate with the father as follows:

(a)by Facetime, Skype or similar available reasonable resource each Monday, Wednesday and Friday at 6.30pm Australian Eastern Standard time or Australian Eastern Summer time (whichever may be appropriate noting such time is Victorian time);

(b)at any reasonable time at the request of X by telephone or by any other media as may be available;

(c)for each Queensland gazetted term school holiday period from the Friday of the last day of term until the last Wednesday of such school holidays with the mother to purchase and pay for pre-paid return air tickets for X with such details and evidence of pre-paid tickets to be provided to the father not later than thirty (30) days prior to the commencement of each such holiday visit and for these purposes the father is to be advised of the relevant airport for collection…

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AGLC
Harden & Sempers [2023] FedCFamC1F 210
Case
[2023] FedCFamC1F 210
Decision Date

CaseChat Overview and Summary

In the case of Harden & Sempers, the mother sought to relocate with the child X to D Town in Queensland, while the father opposed this move and sought orders for equal shared parental responsibility. The father appeared in person without legal representation and conducted his case competently. The dispute arose from the parties' acrimonious relationship and their differing views on the best interests of their child. The court had to determine whether the relocation would be in the child's best interests and whether equal shared parental responsibility should be ordered.

The court considered the relevant legal principles, including the child's best interests and the parents' right to freedom of movement. The court also noted that neither party carried an onus of proof regarding the proposed relocation, and it had to weigh the advantages and disadvantages of each proposal. The court examined the evidence, including the parties' affidavits, cross-examinations, and a family report by Dr H. The court found that the mother had been the primary parent for almost 11 years, but the child had a strong relationship with his father. The court also found that the parents' relationship was marked by conflict, mistrust, and a lack of mutual respect, which was not conducive to the logistical obligations created by the relocation of a child.

The court concluded that the mother's proposed relocation would not be in the child's best interests due to the logistical hurdles and the parents' inability to communicate and cooperate. The court also found that no regime of time for the child with his father was available other than the traditional proposals of each parent, being limited to at best weekends and school holiday time. The court did not order equal shared parental responsibility as the parties did not intend to live in close proximity, regardless of the proposed relocation.

The court made orders that the child would remain in Victoria, and the mother and her partner would not relocate to D Town. The court also made orders for the child to spend time with his father each second weekend, and for block periods on holidays and for special days. The court encouraged the parties to parent their child cooperatively and communicatively and to leave the court with improved parenting skills.

Orders

Orders of the court

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Background

Background to the litigation

The application is opposed by the father. The father appeared in person without the benefit of legal representation or any legal advice, on my understanding. It is proper that I read into these Reasons that the father conducted his case very competently. He was well prepared. He articulated his position and he showed considerable courtesy to not only the Court but to his opponent, the other party and the other party’s witnesses, and he should be congratulated for that accordingly. As I said, the father opposes the application. The father also seeks an order for equal shared parental responsibility, but asks the Court to effectively continue the orders made some years ago in respect of X, which are that X lives primarily with his mother, spends time with his father each second weekend, and for block periods on holidays and for special days. BACKGROUND The relevant background facts are that the mother initiated this application in about May 2022. The father responded in late May 2022 and the matter has endured and has been given all the assistance and tools of this Court to resolve it, but as is often the case with matters involving a relocation, it has not resolved. The relevant background facts, so far as they are relevant, are that the parties were not effectively in a relationship other than a brief sexual relationship which resulted in X being brought into this world in 2012. The relationship that then endured between the parties was intermittent, but it is fair to say that since then and in the ensuing 11 years, their relationship has been highlighted by acrimony, dispute, conflict mistrust, suspicion and a general lack of mutual respect. The mother has re-partnered and married Mr B. The mother, so far as I understand it, is not employed. Mr B is self-employed as what can be described, perhaps as, a company director. The mother currently lives in C Town. Mr B, somewhat presumptuously and in naïve anticipation of this court case, has already relocated himself to D Town in Queensland. He has done so by way of the purchase of a property in the continuing establishment of his business. The father works in transport. He has a number of skills and experience in the workforce that are hampered by some physical conditions. There is no evidence before me that he is currently re-partnered. He has relatively recently moved his primary place of residence from Suburb E to City F in Victoria. As I understand it, the current driving distance, depending upon logistics and travel between the parties’ residences, is approximately an hour and a half. That being the case, any options for this Court consistent with section 65DAA of the Family Law Act 1975 (Cth) (‘the Act’), flowing from any order that might arise through shared parental responsibility being in respect of equal time caring for X, or substantial and significant caring time for X, are not available to the Court. Logistically, the parties acknowledge that. I should emphasise, in setting out these applications that the mother, to her credit, has come to this Court and said that if I am not amenable to her application to relocate X to D Town, then she will remain in Victoria, contrary to her ambitions and preferences. But with a preference that she be permitted to relocate to City G, but that is certainly not her primary position.

Evidence

Evidence Before The Court

The child’s best interests must be weighed and balanced with the right, if that is the correct term, of a parent to freedom of movement, but must ultimately defer to the child’s best interests. Neither party carries an onus of proof in respect of a proposed relocation, and the Court is to consider each of the parties’ proposals generally, including advantages and disadvantages of a proposed relocation or may itself formulate proposals in the best interests of the child. That is the relevant law. THE EVIDENCE The evidence in this case was predictable in its focus but became of much more assistance by reason of cross-examination, including the very competent cross-examination of the father in person without the assistance of legal counsel. Both parties filed affidavits.[2] Not surprisingly, their affidavit material had a strong focus on criticism of the other party and a subjective shoring up of their own cases. There was an affidavit filed by Mr B[3] again perhaps best interpreted as an exercise in shoring up the mother’s case, and as I have indicated earlier, perhaps naively, we will say, setting out an effort to subjectively convince the Court if not by way of presentation of a fait accompli of the benefits to the family unit by the relocation of X to D Town. Sadly, if it was the anticipation of Mr B and the mother that by presenting such a fait accompli to the Court that it would be influential then they are sadly mistaken. [2] The mother’s trial affidavit filed 15 February 2023 and the father’s affidavits filed 27 October 2022 and 28 December 2022. [3] On 15 February 2023. Both parties and Mr B gave evidence and were cross-examined. Despite my criticisms of the parties and Mr B now, and despite my vigorous interruption and intrusive attempts to cross-examine, or interruption of their cross-examination, and the putting of perhaps far too many questions myself, I am of the view that each of the parties eventually were honest and credible in their evidence. Such is the process of cross-examination that it exposes dishonesty, selective evidence, embellishment and exaggeration, and in this case it did so. The evidence given by both of these parties satisfies me indeed that X benefits by each of them, and Mr B, as positive, productive, good influences and role models in his life. Having said that, the focus of the evidence throughout the trial, and understandably, without criticism, the cross-examination particularly by the father, was historical with a view to laying fault and blame, and with consequent limited impact in a probative sense on the matters which interest me, which are the future best interests of young X. DR H Evidence was also received in the form of a family report by Dr H. The report is dated 3 October 2022. Dr H was made available at court for cross-examination and illumination on the contents and the recommendations in her report. The interviews for the family report were conducted in September 2022 and prior to the move by the father to City F, which I have already indicated put logistical hurdles, distance and travel considerations between the parties regardless of the issue of relocation. Dr H’s observations, reports and recommendations should be viewed accordingly. Nevertheless the report and Dr H’s recommendations were of some considerable assistance to this Court, and I am going to selectively extract parts of them, including those recommendations, for comment in these Reasons.

Decision

Reasons for decision

What this section says, no more or less, is once you have my court orders, I expect you to leave here armed with these Reasons that I am giving you now, and you can have them in written form if you want them, armed with my orders, and you move on to cooperatively and communicatively parent your child, something that has not happened until now. To summarise that, I want you to leave here better parents than you came in. That is my ambition. They are the relevant section 60CC factors.FINDINGS AND CONCLUSION I turn to my finding and conclusions. I am reasonably able to find that the mother has been X’s primary parent for all of his almost 11 years. I find that she is therefore also his primary attachment and source of support. Nevertheless, X has a strong, attached, bond and successful relationship with his father, and relevantly I also find that this relationship is of such strength that it would, in fact, endure and suffer relatively little impact on the changes anticipated by the mother’s proposed relocation. That is simply a comment as to the nature of the relationship between X and his father. Sadly X has been conflicted in his loyalty to each of his parents, and again I note the matters I have read to you from the family report. That is, X is not able, in his view, to negotiate his understanding of divided loyalties to be completely open with each of his parents. As I have said, I find that the mother is the delegated primary parent. The father does not put his hand up to be that primary parent. That is not a criticism of the father. It is simply a fact on the evidence. He has never done so and he does not do so now. Matters of family violence, as I have said, do not feature prominently here, although I do find that X is impacted heavily by the consistent and longstanding acrimony between his parents. He is clearly exposed to that acrimony. Sadly both parents, even now, armed with an enlightening family report, seem relatively oblivious to the impact on their son of the conflictual and acrimonious relationship. Such a poor parental relationship is not usually conducive to the successful relocation of a child; such relocation would of course introduce further practical, logistical, and testing logical, obligations for the parents. I find that these parents are mutually suspicious, accusatory, critical, non-communicative and lacking of mutual respect in the other’s relationship with X. Indeed, the focus in this trial by each of them was on historical blame and criticism of the other rather than on X’s future best interests. Such relationships between parents, again, are not ordinarily conducive to the logistical obligations created by the relocation of a child. I find on the evidence before me that no regime of time for X with his father is available other than what I call the traditional proposals of each of the parents, being limited to at best weekends and school holiday time. The parties do not intend to live in such close proximity, regardless of the proposed relocation, that any equal time or substantial and significant time regime is practicably available to me.

Ratio Decidendi

Legal Principle Established

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