Hartland & Mesny

Case [2023] FedCFamC1F 731

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hartland & Mesny [2023] FedCFamC1F 731

File number(s): BRC 17137 of 2021
Judgment of: HOWARD J
Date of judgment: 25 August 2023
Catchwords: FAMILY LAW – PARENTING – where the father seeks an order for equal time – where the mother seeks to relocate the residence of the child to Country B – where both parents currently live in City C, Queensland – where the six year old child lives five nights with the father and nine nights with the mother each fortnight – where the Court has made findings that the mother has not supported the child’s relationship with the father – where the best interests of the child will be served if the child remains living in City C and lives in a week about shared care arrangement with each parent.
Legislation:

Family Law Act 1975 (Cth)

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited:

AMS v AIF (1999) 199 CLR 160

Baghti & Baghti & Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Cox v Pedrana (2013) 48 Fam LR 651

Cubbin & Cutler [2018] FamCAFC 84

Eagle & Scarlett (No 2) [2020] FamCAFC 291

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johanson & Johanson [2022] FedCFamC1A 74

Masson v Parsons (2019) 266 CLR 554

MRR v GR (2010) 240 CLR 461

Taylor v Barker (2007) FLC 93-345

U v U (2002) 211 CLR 238

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance
Number of paragraphs: 162
Date of hearing: 2 and 3 February 2023
Date of last submission: 16 June 2023
Place: Brisbane
Counsel for the Applicant: Dr Wilson
Solicitor for the Applicant: Condon Charles Lawyers
Counsel for the Respondent: Ms Oakley
Solicitor for the Respondent: O’Neill Family Law

ORDERS

BRC 17137 of 2021

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

MR HARTLAND

Applicant
AND:

MS MESNY

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS:

1.That by no later than 4:00pm on 22 September 2023, the Applicant shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to the Respondent and a copy of the same to the Court at …@....

2.That by no later than 4:00pm on 13 October 2023 the Respondent shall provide any reply to the proposed Final Order to the Applicant and a copy of the same to the Court at …@....

3.That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 20 October 2023.

4.That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court)…

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AGLC
Hartland & Mesny [2023] FedCFamC1F 731
Case
[2023] FedCFamC1F 731
Decision Date

CaseChat Overview and Summary

In the matter of Hartland & Mesny, the father sought final orders to enable the child to spend time with him for seven nights each fortnight, while the mother sought permission from the court to relocate the child's residence to Country B. Both parents are professionals with extensive experience and advanced qualifications in the same field. The parents had a relationship from 2005 to 2016, during which the father remained married to Ms D. The mother fell pregnant with X in 2016, and the father chose to remain living in Australia to be close to X. The legal issues the court had to decide included whether an order for equal time was in the best interests of X and reasonably practicable, and whether the mother's application for international relocation to Country B should be granted. The court concluded that it was in X's best interests to remain living in City C and to have an equal time arrangement with the parents, with the option of visiting Country B twice per year. The court also noted that there would be some benefits to the child in the event that the mother were granted permission to relocate X's residence overseas, but ultimately concluded that X's best interests were served if he remained living in City C. The court gave the parties some time to draft orders to reflect the Reasons for Judgment. The court also noted that the Full Court in Taylor v Barker endorsed the approach taken by the primary judge in that case, and that the legislation did not specify the manner in which a relocation case was to be decided. The court considered the various considerations in the balance, and exercised its discretion to reach its conclusion.

Orders

Orders of the court

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Background

Background to the litigation

The father seeks final orders in these proceedings that would enable the child to spend time with him for seven (7) nights each fortnight. Specifically, the father seeks a final order that would see X living with him in week one on Monday night and Tuesday night, and in week two from Friday after school until Wednesday morning. This is the father’s primary position. The mother seeks the permission of the Court to relocate the residence of the child to Country B. This is the mother’s primary position.BACKGROUND Both parents are professionals with extensive experience and advanced qualifications in the same field. The parents met in Country B in 2004 and commenced a relationship in 2005 when the father was again visiting Europe. At the time the parents commenced their relationship the father was married to Ms D. Throughout the period of time that the parties conducted their affair – the father remained married to Ms D and remained living with Ms D. The father and Ms D have one adult daughter together, Ms E. The mother in these proceedings (Ms Mesny) lived in Australia for seven months between 2006 and 2007. On that occasion, the mother was undertaking work as part of a collaboration between organisations from Country B and Australia. In 2008, the mother migrated from Country B to Australia to take up a full-time senior position in the public service. The mother has remained living in Australia since 2008. The parents continued in a relationship until 2016. During this period of time the father continued to live with his wife (Ms D). The mother fell pregnant with X in 2016. Apparently this was when the mother and the father were present together in Country F attending a conference. The father returned to the United States where he had been awarded a scholarship. The father was based at G University during this time. The father says that he received a WhatsApp message from the mother confirming the pregnancy in 2016. The father made a special trip back to Australia to speak with his wife (Ms D) and inform her about his relationship with the mother. The father told his wife that the mother was pregnant with his child. The father and his wife separated in 2016. The father told the mother in 2016 that he no longer wished to stay in a relationship with her. I accept the father’s evidence on this point. The mother was, understandably, upset. Whilst in America in 2016, the father formed a relationship with Ms H. Ms H is another expert in the same field as the mother and the father. The father had known Ms H for some time. Ms H gave evidence during the course of this trial. I will refer to her evidence later in these Reasons. Ms H migrated to Australia in 2017. Initially she moved to Canberra but moved to Brisbane in 2020 to live with the father. The father and Ms H moved to City C in 2022 to be closer to X. The father had told the mother in 2016 that he was considering moving permanently to the United States. However, the father reconsidered the situation in the months following X’s birth. The father chose to remain living in Australia to be close to X.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note that, thankfully, the mother made it clear in her evidence that she would not move to live in Country B without X. The mother is to be commended for this. CONCLUSION The Full Court in Taylor v Barker endorsed the approach taken by the primary judge in that case. In general, I have followed that same approach. I do note that the legislation does not specify the manner in which a relocation case is to be decided. I have considered the question as to whether or not an order for equal time is in the best interests of X and reasonably practicable. I have concluded that it is both of those things. It is in X’s best interests, and it will be reasonably practicable provided the parents and the child remain living in City C. It will also be apparent that I have come to the view that it will become in X’s best interests to live in an equal time arrangement from the beginning of school Term Two in 2024. It will be apparent that I am also satisfied that between now and school Term Two 2024, it is in X’s best interests and reasonably practicable for him to live in a substantial and significant time arrangement with the parents – identical to the current arrangement of five nights per fortnight with the father. I then weighed that proposal and balanced it against the mother’s application for international relocation to Country B. I noted that there would be some benefits to the child – and indeed to the mother – in the event that the mother were granted permission to relocate X’s residence overseas. But in weighing all the various considerations in the balance, and in the exercise of my discretion – I have come to the conclusion (for the reasons stated) that X’s best interests are served if he remains living in City C and if he graduates from the substantial and significant time arrangement to an equal time arrangement between his parents. It is also in X’s best interests to be able to visit Country B twice per year with his mother – if that is what the mother wishes. This will enable X to continue to foster his relationships with the maternal family and his Country B heritage. In general, holidays each year should be split evenly between the parents – but those holidays will have to be structured to permit the travel to Country B to which I have referred. As to the precise wording of any particular orders, I will give the parties some time to draft orders to reflect the Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

Section 60CC(2) sets out the primary considerations in relation to a determination by the Court of the child’s best interests. Section 60CC(2) and s 60CC(2A) provide:-“(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” In the context of this case, the conclusion I have reached is that there will be great benefits to young X in having a meaningful relationship with both of his parents. As to s 60CC(2)(b) and s 60CC(2A) – there is no evidence in this case that the child has been or is likely in the future to be exposed to the kind of harm contemplated in those provisions of the legislation. It is helpful at this juncture to note some further principles which emanate from the case authorities concerning Part VII applications. In particular, I note:(a)The Court is not required to consider the various sections and subsections in any specific order: Cox v Pedrana (2013) 48 Fam LR 651 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31]. (b)The Full Court stated in the decision of Baghti & Baghti & Ors [2015] FamCAFC 71 (“Baghti”) at [63]:-“[The Court]…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”(c)The Full Court in Baghti also relied on the decision of Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378. Mahoney JA stated at pp.385 – 386, inter-alia:-“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”(d)This is consistent with a long line of authority including Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”). Gleeson CJ, McHugh and Gummow JJ stated at [62], inter-alia:-“… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”(e)In Eagle & Scarlett (No 2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43], the Full Court supported this approach from Whisprun. The courts have consistently confirmed that a parent who is applying for permission to relocate the residence of the child does not need to show "compelling reasons" to live where the parent proposes to live. In this regard I note the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 at [47] and U v U (2002) 211 CLR 238 (“U v U”) at [82].