MACNEIL & DANE

[2015] FamCA 424

FAMILY COURT OF AUSTRALIA

MACNEIL & DANE [2015] FamCA 424

FAMILY LAW – CHILDREN – Relocation – Where the mother sought to relocate to New Zealand with the child – Where the father opposed such relocation – Where the mother’s reasons for relocation are not spurious and more persuasive than the father’s reasons in opposition

FAMILY LAW – CHILDREN – Best Interests – Where the child is securely attached to the mother – Where the child’s relationship with the father is beginning to develop and is supported by the mother – Where the father does pose some risk of psychological harm to the child by reason of his willingness to expose him to family violence, but the risk is not unacceptably high and can be minimised – Where the parties agreed the child should continue to live with the mother – Child to live with the mother – Where the evidence favours the mother being able to relocate the child’s residence, but only after the child and father have reasonable time to consolidate their relationship – Child to spend reasonably substantial amounts of time with the father, depending on the proximity of the father’s residence to the child’s residence

FAMILY LAW – CHILDREN –Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because of the father’s commission of family violence – Where the evidence strongly requires that one parent have exclusive parental responsibility for the child –  Mother to have sole parental responsibility

AMS v AIF (1999) 199 CLR 160
Banks v Banks [2015] FamCAFC 36
Cales & Cales (2010) FLC 93-459
Hepburn & Noble (2010) FLC 93-438
Malcolm v Monroe (2011) FLC 93-460
McCall v Clark (2009) FLC 93-405
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238

Care of Children Act 2004 (NZ), ss 8, 81-86
Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65DA, 65Y, 68B, 70M, 70N
Family Law Regulations 1984 (Cth), rr 14, sch 1A

APPLICANT: Mr Macneil

RESPONDENT: Ms Dane

FILE NUMBER: NCC 2527 of 2013

DATE DELIVERED: 5 June 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 25, 26 & 27 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brady

SOLICITOR FOR THE APPLICANT: Winder Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. All former orders relating to the child B, born … 2012, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Until 31 March 2016, the mother is restrained from causing or allowing the child’s residence to be moved to a place outside a radius of 50 kilometres from the Region C Airport, Queensland, Australia.

5. Until 31 March 2016, each party is restrained from causing or allowing the removal of the child from Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in Australia and to maintain the child’s name on that Watch List until 31 March 2016, after which date it is requested that the name of the child be removed from the Airport Watch List.

6. From 1 April 2016, pursuant to s 65Y(2) of the Family Law Act, the mother is permitted to take or send the child from Australia.

7. Unless otherwise agreed, subject to the father’s compliance with Order 11 hereof, the parties shall take all reasonable steps to ensure that the child spends time with the father as follows until 31 March 2016:

   (a)Whilst ever the father lives within 50 kilometres of the mother and child:

   (i)Each Sunday from 9.00 am until 5.00 pm;

   (ii)Each Wednesday from 3.00 pm until 6.00 pm; and

   (iii)On Christmas Day from 2.00 pm until 6.00 pm.

   (b)Whilst ever the father lives more than 50 kilometres from the mother and child:

   (i)Each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first Saturday following the child’s last visit with the father pursuant to Order 7(a) hereof; and

   (ii)From 2.00 pm on Christmas Day until 6.00 pm on Boxing Day.

8. Unless otherwise agreed, subject to the father’s compliance with Order 11 hereof, from 1 April 2016 the parties shall take all reasonable steps to ensure that the child spends time with the father as follows:

   (a)Whilst ever the father lives within 50 kilometres of the mother and child:

   (i)During school terms:

   (A)

   Each alternate weekend from 5.00 pm Friday until

   
   

   6.00 pm Sunday, commencing on the first Friday of each school term; and

   (B)From 4.00 pm until 7.00 pm each Wednesday.

   (ii)For the first week of the Autumn, Winter, and Spring school holiday periods, commencing at 5.00 pm on the last day of school term; and

   (iii)From 3.00 pm on Christmas Day until 6.00 pm on New Year’s Day each year.

   (b)Whilst ever the father lives more than 50 kilometres from, but within 250 kilometres of, the mother and child:

   (i)During school terms, each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each school term;

   (ii)For the first week of the Autumn, Winter, and Spring school holiday periods, commencing at 5.00 pm on the last day of school term; and

   (iii)From 3.00 pm on Christmas Day until 6.00 pm on New Year’s Day each year.

   (c)Whilst ever the father lives more than 250 kilometres from the mother and child:

   (i)During school terms, from 5.00 pm Friday until 6.00 pm Sunday on the weekend falling closest to the middle weekend of each school term;

   (ii)For the first week of the Autumn, Winter, and Spring school holiday periods, commencing at 5.00 pm on the last day of school term; and

   (iii)From 3.00 pm on Christmas Day until 6.00 pm on New Year’s Day each year.

9. For the purpose of implementing Order 7 hereof, unless otherwise agreed, the parties shall respectively ensure the child’s collection from and return to the McDonalds Restaurant, Shopping Centre, Region C, Queensland.

10. For the purpose of implementing Order 8 hereof, unless otherwise agreed, the parties shall respectively ensure the child’s collection from and return to the place nominated by the mother to the father in writing no less than 28 days in advance of the prospective exchange of the child between them, which place must be within a radius of 10 kilometres of the child’s residence.

11. The father is restrained from consuming alcohol for the duration of any time spent by the child with him and for the immediately preceding 12 hours.

12. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by “Skype” internet communication program or telephone with:

    (a)The father each Wednesday when the child is living with the mother, at 5.00 pm (local time for the child), and for that purpose the father shall contact the child on the telephone number or internet connection provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number or connection at that time;

    (b)The mother each Wednesday when the child is spending time with the father pursuant to Orders 7(b), 8(a)(ii), 8(a)(iii), 8(b), and 8(c) hereof, at 5.00 pm (local time for the child), and for that purpose the mother shall contact the child on the telephone number or internet connection provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number or connection at that time; and

    (c)The parent with whom the child is not then staying, on the child’s birthday, at 5.00 pm (local time for the child), and for that purpose the parent with whom the child is not staying shall contact the child on the telephone number or internet connection provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number or connection at that time.

13. The mother shall authorise and request the principal of any pre-school or school attended by the child to provide to the father, at the father’s expense, copies of all pre-school reports, school reports, and pre-school or school photograph order forms relating to the child.

14. Each party 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.

15. Leave is granted to the parties to furnish a sealed copy of these orders to:

    (a)The principal of any pre-school or school attended by the child;

    (b)The Commissioner of the Australian Federal Police;

    (c)The principal officer of any other authority concerned with control of the movement of persons into and out of Australia; and

    (d)The Registrar of any New Zealand court.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17. Any and all other outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Macneil & Dane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2527 of 2013

Mr Macneil

Applicant

And

Ms Dane

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father and respondent mother disputed parenting orders for their young son in these proceedings.

2. There was no dispute the child should live with the mother, but there was heated dispute about where they could live. The mother wished to return to live in New Zealand with the child, but the father insisted they remain in Queensland, Australia.

3. Otherwise, the parties were at odds over the allocation of parental responsibility for the child and the nature of the future interaction between the child and the father.

History

1. The parties were not married. They were in a de facto relationship between 2010 and 2013.

2. The child was born in 2012 and is now three years of age.

3. In May 2013, the parties had a volatile argument, which prompted the mother to separate from the father. With the father’s consent, the mother took the child with her to New Zealand for several weeks. She is a citizen of New Zealand and she stayed with the maternal grandparents.

4. The father prevailed upon the mother to return to Australia, which she did, and they reconciled.

5. In September 2013, the father assaulted the mother during another argument at their home, for which the father was later charged, convicted and sentenced.[1]

   [1] Mother’s affidavit, paras 52-55; Exhibit M1

6. The mother considered that event precipitated their final separation.[2] She made plans with the maternal grandparents for her and the child to return to live in New Zealand. She left Australia with the child on 6 October 2013,[3] without the father’s knowledge or consent.[4]

   [2] Mother’s affidavit, para 4

   [3] Mother’s affidavit, para 9(b); Family Report, para 18

   [4] Mother’s affidavit, Annex A (para 6)

7. The father commenced proceedings in Australia on 11 October 2013, seeking parenting orders in relation to the child, including an order for placement of the child’s name on the Airport Watch List. He would not have done so if he already knew the child was in New Zealand. The father knew by

   
   

   9 November 2013 the child was outside Australia,[5] but not as early as

   
   

   7 October 2013, as the mother alleged.[6]

   [5] Mother’s affidavit, Annex A (paras 10-11)

   [6] Mother’s affidavit, para 9(c)

8. Since the Australian proceedings were frustrated, the father arranged for an application to be filed in New Zealand seeking orders for the child’s return to Australia under the provisions of the 1980 Hague Convention. Those proceedings were commenced in November 2013 and were concluded in

   
   

   April 2014, when orders were made for the mother to return the child to Australia. The mother and child returned to Australia on 15 June 2014.[7]

   [7] Mother’s affidavit, paras 9(g), 9(h), 9(i)

9. Upon their return, they moved directly to the Region C, even though they formerly lived with the father in either Sydney or Newcastle.

10. In October 2014, the father filed a fresh application seeking location and recovery orders in respect of the child, to which the mother responded by seeking interim parenting orders. Their applications were heard in

    
    

    December 2014, when orders were made for the child to live with the mother and to spend time with the father for six hours on the first Saturday and first Sunday of each month. The mother was living at the Region C, where she intended to stay, and the father was then living in Newcastle, where he intended to remain living.

11. Notwithstanding the father’s stated intention to remain resident in Newcastle, he moved to the Region C in early January 2015 and has remained there ever since. Once he was in Queensland, the parties informally agreed upon much more flexible care arrangements for the child. The mother allowed the father and child to spend extra time together, which occurred several times during each week for about the following month.

12. However, in early February 2015, the mother formed the view the father was taking liberties with her generosity and she insisted on their reversion to compliance with the orders made in December 2014.

13. Thereafter, the child spent time with the father on the first weekends in March and May, but not in April 2015, because of a disagreement over the parties’ compliance with interim orders requiring their submission to urinalysis upon demand.[8]

    [8] Order 7 made on 19 December 2014

The proposals

1. The father abandoned the orders set out within his Amended Initiating Application, filed as recently as 14 May 2015, and instead sought the orders set out in the minute he tendered.[9] In essence, he proposed that the parties have equal shared parental responsibility for the child, that the child live with the mother in Queensland, and that the child spend time with him on alternate weekends, during school vacations, and on other special occasions.

   [9] Exhibit F1

2. The mother pressed for the orders set out within her Response, filed on

   
   

   13 November 2014. She wanted sole parental responsibility for the child and for the child to live with her in New Zealand. She proposed that the father and child spend some limited time together in New Zealand over the next three years, and thereafter, for half of his school vacations in Australia.

The evidence

1. The father relied upon his affidavit filed on 22 May 2015, which should have been filed and served weeks before,[10] but the mother did not ultimately object to his reliance upon it. The father also relied upon the affidavit of the paternal grandmother filed on 12 May 2015.

   [10] Order 4 made on 23 March 2015

2. The mother relied upon her affidavit filed on 29 April 2015.

3. Both parties relied upon the Family Report dated 26 February 2015.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

8. In U v U (2002) 211 CLR 238 the High Court, by majority, distilled a number of important principles for application to cases in which the proposed relocation of a child’s residence would be liable to impinge upon the child’s relationship with the non-residential parent.

9. First, the High Court confirmed (at 256-260) it is for the Court and not the parties to define the issues in parenting cases. Once the parties are unable to reach a compromise and the matter is litigated before the Court, the best interests of the child is the paramount consideration in the determination of appropriate parenting orders, irrespective of the competing proposals of the parties. The Court is not bound to select one of the polarised options submitted by the parties (at 284-285). The making of orders that do not reflect the orders devised by either party does not vitiate the judgment or orders (at 263), which is why procedural fairness justifies the parties’ interrogation about their alternate positions (at 246-248), though their primary proposals must be identified and evaluated (see Banks v Banks [2015] FamCAFC 36 at [25]-[26]).

10. Secondly, the High Court noted (at 261) that the parent wishing to relocate with the child bears no onus of proving the existence of compelling reasons for the relocation. Nor does the parent who desires no change of residential location bear any onus of proving the existence of compelling reasons for that decision (see Malcolm v Monroe (2011) FLC 93-460 at [83]). However, the parties’ reasons for their proposed relocation and immobility should be explored in evidence and appraised, which process will inform the inquiry about whether the relocation is a proper exercise of parental responsibility (see U v U at 285-286; Malcolm v Monroe at [81], [83]).

11. Thirdly, the High Court stated it should not be assumed the non-residential parent cannot, or should not, contemplate moving so as to be nearer to the relocating residential parent and child. The reasons for maintenance of the place of residence of the non-residential parent should be explored at hearing just as the reasons for the proposed relocation of the residential parent are explored (at 285). The residential parent need not subordinate his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing (at 286).

1. Fourthly, the High Court observed (at 262-263) that it is unlikely relocation disputes will admit of perfect solutions. Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ. Findings about the child’s short, mid, and long term interests permissibly fall within a wide range of discretion.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. There was no dispute the child is securely attached to the mother, with whom he has a warm and loving relationship.[11] Orders perpetuating the child’s residence with the mother will ensure he continues to derive maximum benefit from that relationship.

   [11] Family Report, paras 87, 94

2. By comparison, the child’s relationship with the father is not so well developed. When the Family Consultant conferred with the family some six months ago the child was “start[ing] to develop an idea of who the father is” and was happy to interact with the father.[12]

   [12] Family Report, paras 91, 95

3. The law recognises that, apart from in cases of abuse, children generally benefit from the development of good relationships with both their parents (see U v U at 285-286). The Family Consultant considered that, ideally, the child’s relationship with the father needs to be consolidated, which could be achieved through “ongoing, frequent contact and communication”.[13]

   [13] Family Report, para 91

4. Orders were made in December 2014 for the child to spend time with the father, though only monthly because of the vast distance between the parties’ homes. However, the father voluntarily moved to be near the mother, after which the parties agreed upon the child spending more frequent time with him. As a consequence, the mother told the Family Consultant the child started referring to the father as “my Dad” and he seemed “very taken” with the father, which made her feel both guilty the child had not been spending more time with him earlier and happy they were then developing their relationship.[14]

   [14] Family Report, para 48

5. The mother expressed similar sentiments in cross-examination. She said the child refers to the father as “Dad”, he was “becoming attached” to the father, and their relationship was “starting to form”. She believed the bonding process was occurring reasonably swiftly.

6. There is no room to doubt the mother’s understanding about the desirability of the child acquiring and maintaining a meaningful relationship with the father, from which he can derive benefit. She deposed in her affidavit:[15]

   I am conscious of the importance of [the child’s] relationship with his father.

   I’m committed to making a real effort to see that [the child’s] relationship with his father continues in a meaningful way.

   I accept that [the father] should be meaningfully involved in [the child’s] life.

   [15] Mother’s affidavit, paras 21-22, 39

7. Similarly, in cross-examination the mother made remarks like:

   I am fully committed to a meaningful relationship between [the child] and his father.

   I want them to have a relationship.

8. As the Family Consultant properly recognised, the need of the child to have a meaningful relationship with the father must be balanced against his need to be protected from exposure to violence and conflict.[16]

   [16] Family Report, para 101

9. The central plank of the mother’s case was that the father remained a threat to the child’s safety because of his propensity to expose the child to violent conduct, principally directed towards her, which contention requires close examination under s 60CC(2)(b) of the Act.

Section 60CC(2)(b)

1. Any factual finding about the past occurrence of family violence between the parties is, of course, the exclusive province of the Court. The Family Consultant acknowledged such factual determination was not part of her remit,[17] but it is difficult to resist the inference that the Family Consultant affirmatively concluded the father perpetrated serious and sustained violence upon the mother, which conclusion permeated her opinions.

   [17] Family Report, para 98

2. Significantly, the Family Consultant had even less material available to her than was available to the Court. She relied only upon the contents of the parties’ affidavits and her conversations with them. At that time, no material was produced under subpoena,[18] so few independent records were available to corroborate or contradict the parties and their evidence was untested. Nevertheless, the Family Consultant seemingly formed a view that the father had engaged in an “ongoing pattern of coercive, controlling behaviour towards the mother”.[19]

   [18] Family Report, page 4, para 98

   [19] Family Report, paras 11, 43

3. The Family Consultant found the father to be a “very poor historian”.[20] His evidence was little better, but being a poor historian and witness does not necessarily mean he was a violent or oppressive brute. When tested at trial, the evidence only reasonably supported a more moderate factual finding against the father in relation to his commission of family violence.

   [20] Family Report, para a (page 4)

4. It is best to start with incontrovertible facts. The father was convicted for assaulting the mother in September 2013, which incident caused their final separation. The father was sentenced by imposition of a good behaviour bond for 18 months and an apprehended violence order was simultaneously imposed upon him for the protection of the mother for 12 months.[21]

   [21] Mother’s affidavit, paras 52-55; Exhibit M1; Family Report, paras 12-16

5. Even though the father’s conviction and sentence followed from his plea of guilty to the offence,[22] he afterwards inexplicably either denied or minimised the offence, demonstrating little contrition. For example:

   (a)He said directly to the mother “yes I scratched your pinkie I’m so sorry for that, did you know that guy who killed his wife, now he has custody of his kids [sic]”.[23]

   (b)He admitted to the Family Consultant he was convicted for assaulting the mother but added “…you can’t even see the scratch on her pinkie and I just wanted to grab my phone”, and then added he did not regard his conviction as “very fair”.[24] Even after admitting the conviction to the Family Consultant, he later told her there “hadn’t been any violence” and the mother was motivated to falsely allege there was in order to eliminate him from the child’s life.[25]

   (c)He blithely deposed in his affidavit “I deny ever being violent toward the mother”[26] and, when challenged during cross-examination about the absurdity of that answer in the face of his assault conviction, his shallow explanation for the falsehood was “[his] stupidity”.

   [22] Family Report, para 40

   [23] Mother’s affidavit, para 37

   [24] Family Report, para 67

   [25] Family Report, para 77

   [26] Father’s affidavit, para 78

6. Aside from the assault in September 2013, the mother only deposed to two other discrete incidents of violence in May and September 2013, in the months leading up to their final separation.[27] The father refuted his commission of other violent conduct towards the mother,[28] but given his false denial, or at least unreasonable minimisation, of the assault which resulted in his conviction, the mother’s evidence was more reliable than his.

   [27] Mother’s affidavit, paras 50-51

   [28] Family Report, para 68

7. Of course, the definition of “family violence” (s 4AB) now encompasses behaviour which extends beyond frank physical violence, but the behaviour must still be “violent, threatening, or other [similar] behaviour” that either “coerces or controls” a family member or causes the family member to be “fearful” in order to meet the definition. The mother gave evidence of the father’s past excessive expenditure of family funds on the purchase of alcohol and illicit drugs,[29] but such meagre evidence fell considerably short of proof of “family violence”, despite the Family Consultant’s conclusion to the contrary.[30]

   [29] Mother’s affidavit, paras 45, 47

   [30] Family Report, paras 11, 59

8. Most likely, the parties have different perceptions about the extent to which the father was overbearing of the mother, but the mother’s simply stated opinion to the effect that the father’s conduct during their relationship amounted to “violence, threats and controlling behaviour”[31] is an insufficiently secure foundation to find that was so as an objective fact. At best, it was her impression, not established fact.

   [31] Mother’s affidavit, para 42

9. It should not be overlooked that the mother willingly allowed the father back into her social life in recent months. The interim orders made in December 2014 only required her to meet with the father at a public venue to exchange the child between them a few times over one weekend each month, but she consented to far more engagement with the father than those orders envisaged. The parties gave different versions about the level of intimacy they restored to their relationship from early 2015, but even on the mother’s milder version, she still allowed the father to frequent her home and they socialised together with the child.

10. The restoration of their relationship to at least that extent occurred with the mother’s consent. Her will was not overborne by the father. She leased her own home and supported herself independently from the father. The father would have been a trespasser at her home had she not welcomed him. She is an intelligent and resourceful woman, which she ably demonstrated by extricating herself from her unwanted relationship with the father, moving herself and the child to New Zealand and then to Queensland, reporting the father to police for assault, travelling back to Australia to willingly give evidence in his prosecution, and procuring an apprehended violence order against him. She obviously had the fortitude to exclude the father from her life if she wanted.

11. The only available inference is that the mother did not regard the father as an unmanageable risk of further family violence to either her or the child, which suggests their history was not imbued with the acute degree of violence imputed by the Family Consultant. If it were otherwise, the mother would not have let him back into her life in the way she did. She was not hopelessly pinioned by the father in a domestic relationship from which she could not escape – either literally or figuratively.

12. Nevertheless, the preliminary thaw of the parties’ relations did not last long. The father complacently believed the parties had resumed their romance, but the mother did not share his opinion. She was annoyed by his presumptuous use of her home and, after only a month, told him to leave.[32] Unfortunately, the father did not take his eviction kindly and started an argument. He raised his voice, challenged the mother to summon the police, departed the home, but then later returned in the early hours of the morning and sent a text message to the mother suggesting he wanted to confront her male friend.[33] The father admitted to the Family Consultant the relationship “ended badly”, by which he was “upset”.[34] His behaviour only served to vindicate the mother’s decision not to reconcile her relationship with him.

    [32] Mother’s affidavit, paras 82-83

    [33] Mother’s affidavit, para 83, 86-87; Family Report, paras 53-54

    [34] Family Report, para 64

13. The father does pose some risk of psychological harm to the child by reason of his willingness to expose him to family violence, but the risk is not unacceptably high and, aside from minimising the chance of hostile confrontations between the parties at changeovers by use of a public venue, the child needs no other protection from that risk.

Best interests of child – additional considerations

1. The subsidiary complaint made by the mother against the father related to his consumption of alcohol. The mother fears it is excessive and that, if intoxicated when caring for the child, the father will not be able to exercise proper supervision of the child.

2. There are objective indications of excessive alcohol consumption by the father over a long time. Despite being only a relatively young man, the father suffers from gout, which the Family Consultant described to be “acute inflammatory arthritis…strongly associated with excessive consumption of alcohol”.[35]

   [35] Mother’s affidavit, para 46; Family Report, para 8

3. The father was also convicted of driving cars when affected by a prescribed concentration of alcohol. He suffered such convictions in 2000 and 2013. The father admitted only the most recent conviction and wrongly asserted it was a “low range” offence.[36] In fact, both were “middle range” offences.[37]

   [36] Father’s affidavit, para 83

   [37] Exhibit M1

4. The father also failed to provide a urinalysis report in April 2015, when demanded by the mother, even though orders made in December 2014 required it. His excuse was that it was a public holiday when the mother made the demand and no pathologists were open. Even so, he did not procure a test result on the next working day or on any day since. His explanation was rather facile and hardly induced confidence in his sobriety.

5. The father flatly denied, both to the Family Consultant[38] and in cross-examination, that he consumes alcohol excessively. That may be his honest perception, but the evidence does not permit a finding that he is sufficiently abstemious to eradicate all risk to the child while in his unsupervised care. The father’s counsel commendably conceded in final submissions that the evidence demonstrated the father has “a propensity to consume alcohol”.

   [38] Family Report, para 45, 72

6. The mother described the father as an “alcoholic” to the Family Consultant,[39] which seems an embellishment on the available evidence, but it is not unreasonable for her to be apprehensive about his unwillingness to moderate his consumption.

   [39] Family Report, para 57

7. Clearly enough, if alcohol consumption intoxicates the father while he has the care of the child, his supervision will be either lax or absent, leaving the child exposed to the risk of some form of harm. The only reasonable remedy is to restrain the father from consuming alcohol while the child visits him, and also for a preceding period of time, and further, to make that restraint a condition-precedent to the child spending time with him. It may be a difficult condition to enforce, but enforcement would still be possible.

8. The mother desperately wants to return to live in New Zealand. Other than her stays with the child in New Zealand during 2013 and 2014, she has lived in Australia for the last 12 years since she was aged 20 years.[40] However, there is no doubt about the genuineness of her desire to return. The paternal grandmother knew that was the mother’s wish from as early as 2013, after her interest in the father had waned.[41]

   [40] Family Report, para 3

   [41] Paternal grandmother’s affidavit, para 7

9. The mother’s reasons for the relocation are not spurious. She perceives her residence with the child in New Zealand instead of in Australia will be beneficial because of the availability of maternal family support, cheaper accommodation, and better financial circumstances.[42] Those are very powerful considerations (see McCall v Clark (2009) FLC 93-405 at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).

   [42] Mother’s affidavit, paras 11-20, 27, 29; Family Report, para 60

10. The mother’s financial predicament is quite precarious, since the father’s payment of child support is either paltry or non-existent[43] and, because she lives alone with the child, her employment opportunities are restricted. She has not worked in gainful employment since the child’s birth.

    [43] Family Report, paras 29, 65

11. The father’s financial circumstances are apparently little better, but he is at least now employed and, as a single man without other dependents, he is free to move when and where he likes.

12. Unfortunately, the father demonstrated very little insight about the mother’s circumstances and was pre-occupied by his own self-interests. He has no interest in taking on the responsibility of a residential parent. He expected the child to continue living with the mother, but he also expected her to remain living close to him. Initially, he demanded she live with the child in Newcastle, when he was living in that locality.[44] He expected the mother could be satisfied with family support provided by him and the paternal family,[45] which was a foolishly simplistic analysis of the problems between them. He was dismissive of the mother’s concerns about his behaviour and the aggravating effect of his alcohol consumption. He tended to attribute blame to the mother and not accept any responsibility for past events.[46]

    [44] Family Report, paras 37, 44

    [45] Family Report, para 70

    [46] Family Report, para 41, 45, 67

13. The views of the paternal grandmother were identically naive. She too thought she could offer sufficient family support to the mother,[47] even though she sent the mother text messages extolling adverse opinions about her,[48] she spent considerable time denigrating the mother to the Family Consultant,[49] and she was openly disdainful of the father’s conviction for assault of the mother.[50]

    [47] Family Report, para 85

    [48] Family Report, paras 25-26

    [49] Family Report, paras 79, 81, 82

    [50] Family Report, para 83

14. How the father and paternal grandmother could expect the mother to forget that history and accept their succour begs belief. The Family Consultant’s “serious concerns” about the feasibility of such a plan were entirely justified.[51]

    [51] Family Report, para 99

15. After the father changed his mind and voluntarily moved to live in Queensland, he filed an Amended Application seeking an order restraining the mother from moving away from Queensland.[52] Again, he expected the mother to remain living in the locality of his choice. When he conferred with the Family Consultant he was resolute about his unwillingness to live in New Zealand[53] and was unable to contemplate any outcome that would allow for the child’s residence in New Zealand.[54] Again, he was fixated on his own interests.

    [52] Amended Application filed 14/5/15, Order 16

    [53] Family Report, para 75

    [54] Family Report, para 78

16. The evidence revealed the father has no reason to remain resident in Queensland. He now has employment there, but it is presently only casual. He has no family members who live there. None of the friendships he has recently formed are sufficiently strong to afford him emotional or financial support. He conceded in cross-examination the only reason that motivated his move from Newcastle to Queensland was the presence there of the child, which impelled him to then concede that, for the same reason, he would contemplate moving to New Zealand to remain close to the child.

17. There are foreseeable impediments to the father’s residence in New Zealand, such as the need for a residential visa, employment opportunities, and the like, but such a move is at least plausible. The father certainly did not adduce any evidence in an attempt to prove his relocation to New Zealand would be impossible, or even reasonably impracticable.

Conclusions and orders

1. The father’s conviction for his assault of the mother in September 2013 is proof enough of his engagement in family violence. The presumption of equal shared parental responsibility does not therefore apply (s 61DA(2)).

2. It is still possible to allocate equal shared parental responsibility for the child to the parents, but there would be no warrant to do so unless that outcome manifestly promoted the child’s best interests. The evidence does not support such a conclusion. In fact, the evidence more strongly requires that one parent should have exclusive parental responsibility for the child and, since it is uncontroversial the child should live with the mother, she should have it.  

3. The single biggest controversy between the parties is the location of the child’s residence, upon which they have been unable to reach agreement and appear incapable of doing so. The decision about the child’s residential location is a “major long-term issue” in the child’s life (s 4). If the decision over that issue was left to the parties equally they would be in permanent deadlock, the result of which would be to perpetuate the child’s residence in Australia and preclude his relocation to New Zealand, meaning the father would have his way by default. Conversely, investiture of the mother with sole parental responsibility for the child would enable to her to unilaterally decide that the child should live in New Zealand and she would then succeed by default. The Court should decide that underlying dispute.

1. In any event, despite the revival of conviviality between the parties some months ago, they have reverted to their former positions of distrust. They are not overtly hostile to one another, but their civility is a thin veneer. They do not have sufficient confidence and trust in one another to courteously consult and make a genuine effort to compromise, as the law would require of them if they held equal shared parental responsibility for the child (s 65DAC). Their recent disagreement in early April 2015 over their submission to urinalysis was a perfect example, as was the father’s refusal to participate in mediation when the mother proposed it.[55]

   [55] Mother’s affidavit, paras 9(k), 9(l)

2. Since equal shared parental responsibility is not conferred upon the parties, there is no obligation to consider the prescribed preferential residential alternatives for the child (s 65DAA).

3. Given the child will live with the mother and she will have sole parental responsibility for him, the question arises as to whether she should be restrained from relocating his residence to a place of her choice.

4. The father contended such a restraint should exist, but he prevaricated about the form it should take. In his Amended Application he sought an explicit injunctive order,[56] but he did not do so in the final orders he proposed.[57] Ultimately, he expected the mother must remain resident with the child in Queensland because an allocation of equal shared parental responsibility would enable him to thwart her plans,[58] his proposed orders provided for the child’s frequent visits with him and use of a designated changeover venue in Queensland,[59] and the Act would require it without any contrary order (s 65Y).

   [56] Amended Application filed 14/5/15, Order 16

   [57] Exhibit F1

   [58] Exhibit F1, Order 2

   [59] Exhibit F1, Orders 3-6

5. The mother is just as entitled as the father to live in the place of her choice. The Court has power to make injunctive orders regarding the location of a child’s residence (s 68B), but such an order should only be made cautiously (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). That is because parents enjoy a high measure of freedom of movement which is not lost by reason only of their status as parents. They have as much residential freedom as is compatible with their obligations pertaining to the child (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210, 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350). Only when the welfare of the child would be adversely affected should a parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interests (see U v U at 262).

6. There are no sharp lines delineating between residential moves which are feasible and those that are not. The desire of a residential parent to relocate a child’s residence is liable to impede the duration and frequency of time the child can spend with the non-residential parent. The point at which a proposed residential relocation becomes untenable is a question of degree in each individual case. What might be quite unexceptional in one case could be quite intolerable in another, due to such variables as the age and maturity of the child and the quality of the relationship the child enjoys with the non-residential parent.

7. While an immediate residential move from Australia to New Zealand by an adolescent closely bonded to his father may be unremarkable, in the context of this case, an immediate residential move of that type by the child when he presently only has a formative relationship with the father would not likely be beneficial for him. The international move would likely retard his developing bond with the father and, deprived of regular personal interaction, their relationship would wither.

8. Although the parties contested the case on the basis that the child’s residential relocation should be either immediately allowed or permanently restrained, for reasons earlier articulated, the Court is not bound to the selection of one or other of those polarised alternatives. In this case, it is sensible to consider only a temporary restraint. That option was raised during the trial with both parties for their express consideration and, while neither adopted it with relish, both acknowledged the idea had merit and neither submitted against it.

9. Presently, the child’s interests would be better served by remaining resident in reasonably close proximity to the father in Queensland so their burgeoning relationship has time to consolidate. International electronic communication between the child and father would not currently be a satisfactory substitute for their face-to-face interaction. Despite the mother’s evidence in chief to the contrary,[60] she admitted as much during cross-examination. The Family Consultant’s evidence to that effect in cross-examination was clearly correct.

   [60] Mother’s affidavit, paras 23, 40, 66

10. However, once the child’s relationship with the father is probably sufficiently strong to withstand their periodic separation, the child’s best interests would likely be better served living in New Zealand. That is because the mother will certainly be more fulfilled as a parent and consequently better able to provide for the child’s emotional needs. Their financial circumstances will also be measurably improved. The disadvantageous loss of a meaningful relationship with the father will be annulled, or at least significantly curtailed, by the child having first had the opportunity to forge a bond with the father that will transcend his physical absences from the child’s life.

11. Aside from the child’s interests – which are only the paramount consideration and not the sole consideration – there are the parties’ interests to consider. The reasons offered by the mother for her relocation with the child were genuine and reasonable. They were stronger reasons for the residential relocation than any reasons advanced by the father for its prevention.

12. On balance, the evidence favours the mother being permitted to relocate the child’s residence, but only after the elapse of a period of time within which the child and father have the chance to consolidate their relationship. The duration of that period is necessarily arbitrary, but the mother was willing to remain resident in Queensland for up to 12 months for that purpose. Her alternate plan was to remain resident in Queensland if she was restrained from returning to New Zealand anyway.[61]

    [61] Mother’s affidavit, para 28; Family Report, para 44

13. The orders require the mother to remain resident in a generously large area of south east Queensland, where she currently lives with the child, for the next nine months or so. Thereafter she will be free to live with the child where she chooses. On the evidence, that will most likely be in New Zealand, but perhaps still within Australia. The orders preclude the child being removed from Australia within that preliminary period so as to ensure the child has every chance to develop his relationship with the father.

14. The orders make alternate provisions for the child to spend time with the father depending upon whether the father chooses to live within 50 kilometres of the mother, 250 kilometres of the mother, or further away. He may choose to live near the mother and child, or circumstances (such as employment) may require him to live a further distance away, or he may choose not to try and follow the child at all. The orders should try and cater to those eventualities.

15. If the father lives near the mother and child, the orders enable the child to spend reasonably substantial amounts of time with the father. The risks of harm the mother considered the father posed to the child were not so significant as to warrant preclusion of the child from spending overnight time with the father for much longer.

16. For the next nine months, the child will spend frequent amounts of time during the day with the father, if the father continues to live within 50 kilometres of the mother and child. If he lives further away, the distance between them will not be conducive to that regime so the child will instead spend alternate weekends with the father, encompassing the Saturday night. That alternative regime would introduce overnight visits between the child and father slightly sooner than the mother would like, but she accepted the child could stay overnight with the father from January 2016.[62]

    [62] Response filed 13/11/14, Order 28(c)

17. Upon expiration of the preliminary period of nine months, the mother will be free to move with the child where she desires, which will probably be to New Zealand. Thereafter, the orders provide that the amount of time the child and father may spend together depends upon the proximity of their homes and diminishes the further apart they live, either by choice or by force of circumstances. The regime of visits between them is capable of meeting the definition of “substantial and significant time” (s 65DAA(3)) if they continue to live close by.

18. Neither party enjoys favourable financial circumstances. The mother proposed orders that would require the parties, from three years hence, to share the costs of transporting the child to Australia to visit the father during every school vacation for the remainder of his minority. There is no evidentiary foundation to find such an order is practicable. Such orders would fail and require further litigation if either party, because of professed economic inability, failed to contribute to the child’s travel costs.

19. Although the father will, for the foreseeable future, find it difficult to afford return flights and accommodation to enable his visits with the child in New Zealand, that is still the most pragmatic option. The cost of return airfares to and accommodation in New Zealand is likely to be comparable to the cost of return airfares and accommodation involved in travel between Australian cities, and the father was previously prepared to consider travelling between Newcastle and Queensland to visit the child. He could always, of course, investigate with more vigour the possibility of his permanent or temporary residence in New Zealand

20. The father is restrained from consuming any alcohol at times during and proximate to the child’s visits with him. Observance of that injunction is a pre-condition to the child’s continuing visits.

21. In the first nine months, the parties must use the same changeover venue designated under the interim orders made in December 2014. Neither complained about that venue. The orders permit them to agree otherwise if they wish. Thereafter, the mother must nominate the changeover venue and provide the father with plenty of notice. It is impossible for the orders to specify that changeover venue because it is unknown where the parties will then be living.

22. The orders make provision for weekly communication by the child with both parents, either by Skype or telephone.

23. Because the mother will have sole parental responsibility for the child, the orders require her to authorise the child’s pre-school and school principals to release to the father, at his expense, the child’s reports and photographs.

24. If the mother acts on her present intention to relocate with the child to New Zealand when she is able, the father can be sure the orders will continue to be operable. The orders may be registered and enforced in New Zealand as a consequence of both Australian legislation (ss 4, 70M, 70N of the Act; r 14 and schedule 1A of the Family Law Regulations 1984 (Cth)) and New Zealand legislation (ss 8, 81-86 of the Care of Children Act 2004 (NZ)).

I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 June 2015.

Associate: 

Date:  5 June 2015