Mannon & Bainer

[2021] FCCA 856

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mannon & Bainer [2021] FCCA 856

File number(s):

TVC 329 of 2021

Judgment of:

JUDGE JARRETT

Date of judgment:

12 April 2021

Catchwords:

FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – children – paramount consideration: best interests of the child – general principles.

FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – children – relocation – domestic relocation.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 60CC(2)(a), 61DA(1), 65DAA(1), 65DAA(2), 69ZT

Cases cited:

Campbell & Spalding [1998] FamCA 66

Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230

Number of paragraphs:

52

Date of last submission/s:

12 April 2021

Date of hearing:

12 April 2021

Place:

Townsville

Solicitor for the Applicant:

Mackey Wales Law

Counsel for the Respondent:

Ms Jenkins

Solicitor for the Respondent:

Kenna Teasdale Lawyers

ORDERS

TVC 329 of 2021

BETWEEN:

MR MANNON

Applicant

AND:

MS BAINER

Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	12 APRIL 2021

THE COURT ORDERS THAT:

1.The parties have equal shared parental responsibility for the child X born in 2020.

2.The Mother return the residence of the child to Townsville within 21 days.

3.Upon the return of the child to Townsville, the child live with the Mother and spend time with the Father as follows:

(a)Each Tuesday and Friday from 5:00pm until 7:00pm; and

(b)Each Sunday from 9:00am until 6:00pm.

4.On Mother’s Day weekend, that the time not take place on the Sunday but rather the immediately preceding Saturday.

5.In the event the Mother does not return the child to Townsville in accordance with these Orders, the Father has liberty to apply.

6.The child X born in 2020 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Townsville.

7.The matter be adjourned to 9:30am on 5 May 2021 for mention in the Federal Circuit Court of Australia sitting at Townsville.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Mannon & Bainer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. This is an application for parenting orders in respect of one child, X, who is about 13 months of age.  He presently lives in the care of his mother and she lives in Melbourne.  She is 24 years of age and not employed.  She cares for X on a full-time basis.  X’s father lives in Townsville.  He is 32 years of age and he works as a professional.  He earns about $90,000 per year and he works remotely.  His employer is based in Melbourne.  The parties commenced their relationship in 2019 when they were both living in Melbourne.  They moved to Townsville in May of 2020. 

2. They did that in the face of the COVID-19 pandemic and the lockdown that was then underway in Melbourne.  Both parties give evidence that they thought it more conducive to everybody’s wellbeing if they moved from Melbourne to Townsville.  The father’s family are in Townsville.  He is originally from Townsville.  According to the evidence he has spent most of his time here.  He has lived in other places - Brisbane, Region C and Melbourne – but it seems uncontroversial that most of his life has been spent here.  The mother’s immediate family are in Country D.  Her mother is there.  She has a sister there as well.  She has some aunts and an uncle and grandparents who live in Melbourne. 

3. By these proceedings, the father seeks an order that X return to live in Townsville with or without his mother.  If his mother chooses to return to Townsville then he seeks an order that X live with her and spend time with him.  In the event that she chooses not to return he says that X should live with him. 

4. Thus, it is his case that X’s best interests demand that he lives in Townsville.  The mother’s response is that X should remain living with her in Melbourne and that he should spend supervised time with the father in the way set out in her response to this application. 

5. This is an application for interim parenting orders.  It involves what the parties have described as relocation, but relocation cases are not a particular type of case.  They are a parenting case.  And just as any parent case, it needs to be decided according to the best interests of the child or children concerned having regard to the evidence before the Court.

6. On an interim application like this the Court needs to apply the statutory pathway established by Part VII of the Family Law Act 1975 (Cth). That pathway applies whether the orders that sought are to be made on an interim basis or on final basis. The difference, as the Full Court points out in Goode & Goode [2006] FamCA 1346 is one of procedure. On an interim hearing like this there is no opportunity for the Court to exercise the forensic advantages that it has at a trial. It generally cannot make findings of fact where the facts are in dispute. It is generally impossible and almost always inadvisable to attempt to do so.

7. Thus, the Full Court in Goode & Goode suggests that the application needs to be decided according to the uncontested facts.  There are some uncontested facts here.  And I will refer to them shortly.  There are some contested facts as well.  One of the areas of contention concerns violence – violence between these parties.  The mother makes a raft of allegations, all general in nature.  They are denied by the father.  And there is little common ground between them.  But I think it is probably fair to say, having regard to the evidence of each of them, that their relationship was a volatile one that resulted in them arguing perhaps more than they would have liked to have done.  And that some of those arguments took place in front of X.  I will return to the question of violence soon but for present purposes it is sufficient to make those observations. 

8. It is also necessary to make some observations, general observations, about the evidence. These are proceedings are conducted pursuant to Division 12A of Part VII of the Family Law Act. Section 69ZT, I think, suggests that particular rules of evidence set out in the Evidence Act do not apply to these proceedings. But that does not mean they ought not be observed. The purpose of the rules of evidence is to ensure that the Court has before it reliable and probative evidence going to a fact in issue between the parties. Ignoring the rules of evidence and leading evidence which would otherwise be inadmissible by reason of those rules detracts, often significantly, from the probity of that evidence. This case is no exception. There are many allegations, particularly concerning the question of violence, which amount to nothing more than assertion, conclusion, speculation and unsupported opinion. It is evidence which attracts no probative value at all and which can safely be ignored.

9. I have attempted to find in the affidavits filed by each of the parties and relied on by them for the purposes of these proceedings, evidence as opposed to assertion, conclusion, opinion and speculation.  It has been a struggle. 

10. Parenting orders can deal with a number of things. There are two matters that parenting orders often deal with which are of significance. The first is the incidence of parental responsibility. The next is where children will live and with whom they shall spend their time and communicate. The Family Law Act provides that parenting orders can deal with some other things as well but for present purposes they are the main items on the agenda. The making of any parenting order, irrespective of with what it is that it deals, is a function of the Court concluding that those particular orders are in the best interests of the child or children concerned based on the evidence before it.

11. As to the first general matter, parental responsibility, the Court is required to apply a presumption of equal shared parental responsibility. So much is set out in s. 61DA(1) of the Family Law Act. The presumption does not apply where the Court is satisfied that there has been family violence between the parties or towards one of the children is subject to the application. And the presumption is rebutted if the Court considers on the evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

12. Here, both parties assert family violence. Here, both parties say that their relationship was such that the Court should comfortably be satisfied that the other party to the relationship was violent in a way which attracts the operation of s.61DA(2) of the Family Law Act.

13. No party addressed me on the question of parental responsibility although there is reference to it in the written submissions filed for the father.  Both parties seek an order for equal shared parental responsibility, at least on a final basis.  That tends to suggest that (a) the presumption applies, although, as I have already indicated, on the basis of the cases run by each of the parties that cannot be so; or (b) each party is of the view that irrespective of the violence that has occurred between them it is nonetheless in this child’s best interests for them to have equal shared parental responsibility for him.  That is interesting and curious all at the same time. 

14. The making of an order for equal shared parental responsibility imposes consequences upon the parents and the Court. The making of an order for equal shared parental responsibility means that insofar as the Court is concerned, the Court must not only consider the proposals of the parties but it must also consider the matters set out in s. 65DAA(1) and s. 65DAA(2) of the Act. And insofar as the parents are concerned the making of such an order imposes upon them the obligation to make a genuine attempt to reach agreement about decisions concerning major long-term issues for X and to make such decisions jointly. That necessarily carries with it the proposition that these parties have the ability to communicate and they both are filled with optimism about their capacity and ability to reach joint decisions for this child.

15. The respondent mother does not seem to seek an order for equal shared parental responsibility on an interim basis.  But the Court is obliged to consider the making of such an order each time it makes a parenting order.  And so the absence of such a prayer for relief on her part is neither here nor there.  The obligation on the Court is to consider it, and if necessary, make such an order.  Given that both parties seek the making of such an order on a final basis I think it entirely appropriate to make that order now.  These parties need to get used to the idea, if they are not already, that they will need to communicate with each other; that, like it or not, they have a co-parenting relationship which means they will be jointly responsible for decision-making in respect of this young man.  So, the first order will be an order for equal shared parental responsibility. 

16. Neither party suggests that this child should live in an equal time arrangement at the moment.  And that is sensible.  His age militates against it.  In the event of mother remains living where she is and the father remains living where he is, it would not work anyway. 

17. The father’s case is advanced on the basis that in terms of the time that X should spend with him, short periods of frequent and regular time is what is indicated.  That is an appropriate, child-focused developmental response to the separation of these parents and the recognition that this child is entitled to a relationship with both of them.  I asked the mother’s counsel if the mother accepted that as a general proposition the type of time that was being suggested by the father was appropriate for X and I was told that she agreed.  I take it as an uncontested matter then that that type of arrangement being proposed by the father, whether it happened here or in Melbourne or Timbuktu, is the type of arrangement which will best suit him given his developmental stage. 

18. Section 60CC of the Family Law Act sets out a list of matters the Court must take into account when it determines what is in a child’s best interests. There are two types of matters set out in s.60CC. Two matters are termed primary considerations and the balance are termed additional considerations. The first of the primary considerations is the benefit to be derived by a child from having a meaningful relationship with each of his parents. It is not whether the child has a meaningful relationship or should have a meaningful relationship or is likely to have a meaningful relationship, it is whether there is likely to be a benefit to the child from a meaningful relationship with each of his parents. And as the old authorities under the Family Law Act show, that is, those decided well before s. 60CC(2)(a) was ever conceived, the Court takes the view that generally speaking children will derive a benefit from a relationship with each of his or her parents. It is important for children to have a relationship with parents so that they can establish, amongst other things, their own sense of identity. The very orders sought by the parties, each of them in this case, are underscored by the assumption that X will benefit both in the short but more importantly the long term from a meaningful relationship with each of them.

19. There is an express statement, more or less to that effect, from the mother via his solicitors, set out in the letter sent by the solicitors to the father on 7 March 2021 wherein they say this:

    Our client wishes to make clear that she considers you an important part of X’s life. 

20. That is an acknowledgement, I think, of the importance of the relationship between X and his father and that there will be a benefit to be derived by this child from such a relationship.  There are similar statements in the father’s affidavit about X’s relationship with his mother. 

21. The second of the primary considerations concerns risk.  It concerns the need to protect a child from harm, physical or emotional or psychological harm by reason of being exposed to abuse, neglect, or family violence.  Here, the mother’s case is that there is a need to protect this child from what is presently an unacceptable risk of harm in his father’s care represented by what she says are mental infirmities on the father’s part which has led him to consistently and regularly suggests that he would like to commit suicide.  Her orders seek that he undertake and complete of a psychiatric assessment to deal with that issue.  It does not seem to be the case that she is suggesting that X will be at risk of harm by reason of being exposed to family violence by the father, but that might be her case. 

22. The father’s case is, similarly, that X might be exposed to a risk of harm if he is in his mother’s care without the opportunity for him to have a relationship with his father.  He says that that comes out of the mother’s attitude towards X’s relationship with the father and perhaps mental infirmity on her part. 

23. None of the evidence in this case satisfies me that there is an unacceptable risk of harm to this child by reason of any psychiatric or psychological impairment of either of these parents.  The mother’s suggestion that whatever else is the outcome in this case, X’s time with the father ought be supervised cannot be accepted on the evidence.  There is no evidence of harm to the child by the father.  There is no evidence that I am prepared to accept of threats of harm to this child.  Indeed, the evidence from the mother suggests that the father cares for this child well, that he is a hands-on parent who has demonstrated a capacity to care and meet this child’s needs – so much so that she would call on him for support even after the parties had separated.  To the extent that she now seeks an order that his time be supervised, based upon the evidence before me her argument is in my view contrived. 

24. The first of the additional considerations concerns the views of the child and the age and maturity of the child expressing those views.  It has no place to play here. 

25. The next of the considerations is the relationship the child has with each of his or her parents and other people who are important.  On the evidence, there is no dispute that this child has a good relationship with both parents.  On the evidence he has been cared for by each of them.  There are some disputes around the edges – who did the night work for example – but it is more than tolerably clear from the evidence of both parties that both of them have been instrumental in this child’s wellbeing since his birth.  That is underscored by the proposition that the mother has a history, apparently, of anxiety and depression on her own evidence that stretched back a number of years.  Following X’s birth she was assessed as having what she describes as, “postpartum anxiety”.  In his affidavit, the father - his first affidavit, I think - the father calls it, “postpartum depression”.  I expect that a psychiatrist or psychologist would tell us that there is a difference between the two but I am not sure what it is.  For the purposes of these reasons it does not matter. 

26. She was diagnosed with a condition.  The condition impacted upon her capacity to care for X.  That is demonstrated by the fact that she obtained a medical certificate from her general practitioner that the father then used to obtain time off from his employment so as to assist with X’s care.  He used that time, on the evidence of both of these parties, to care for X and assist the mother to care for him.  The evidence in this case is remarkable in this sense:  it is not very often that one reads affidavits in cases like this where the parties are complementary of each other.  But here the mother was and is complimentary of the father’s parenting capacity, particularly when they were in Melbourne.  And the father seems complimentary of the mother’s capacity.

27. That is important because the capacity to recognise and articulate some of the good things gives hope to be optimistic about the future of the co-parenting relationship between these two parents.  This process in which the parties are now engaged, this court process, has a very real capacity to destroy their co-parenting relationship.  Most parties will agree, and I am sure these parties would agree, that it will be best for this child if his parents have a co-parenting relationship which is workable, functional and efficient.  They may not never see eye to eye on everything and nor should they, but as long as they can communicate and make decisions for their son in a timely and responsive way then they will be able to meet his needs. 

28. But this process has a real capacity, a real and demonstrated capacity, to destroy those types of relationships because the very process requires parties to come along to court armed with sworn documents –  affidavits – which do nothing more than deride the other party and to point out the flaws in their parenting.  If a matter goes to trial the parties are cross-examined.  Horrible things are said about them in court and their views are often not, vindicated.  And so parties leave the courtroom with a decision, which, from their own personal point of view, is generally less than satisfactory.  All of those things go towards impairing and destroying a co-parenting relationship rather than improving it.  So to read here in the affidavits positives about each parent is both refreshing and gives cause for optimism.  And it might be that these parties ultimately are able to see their way forward such that X’s wellbeing is fostered and respected. 

1. The very great difficulty in this case, of course, is his age.  Both the mother and the father have met their responsibilities towards X.  There can be no doubt about that.  Both have discharged their responsibilities as parents in an admirable way, according to the uncontested evidence.

2. The father’s evidence is that he has made financial provision for the mother.  Her evidence is to the same effect.  There are some oddities about the mother’s evidence concerning child support.  In paragraph 11 of her affidavit, she says that the father has only paid $1,400 but yet there is a child support assessment in place of a little over $1,000.  Subsequently in her affidavit she says that no child support assessment has been issued.  It seems inconsistent with what she swears at paragraph 11.  And the father’s own evidence is that no application for child support has been made.  I do not know what the true position is but it probably does not matter at this point.  The evidence of the father, and it is uncontested, is that he has made payments to the mother since separation in early February of this year.  And he has sworn to an intention to continue to do so. 

3. The question of parenting capacity looms large.  The medical evidence insofar as it concerns the mother is completely absent.  I have recorded that she says that she was diagnosed with postpartum anxiety and the father called it postpartum depression or postnatal depression.  But one thing is clear:  she was diagnosed with something and she received some treatment for it. 

4. Her evidence is that she went to see a doctor and she was prescribed medication, Lexapro, that she took for about six weeks.  The exact timing of all of that is not apparent on her evidence.  The father’s evidence is that the mother has received at least two mental health plans.  One the timing for which seems to coincide with the mother’s evidence about being prescribed Lexapro.  But the other appears more recent, from February of this year, which included a referral to a psychologist and medication which the father says is antidepressant medication according to his “Google search”.  

5. The mother’s lack of candour about her mental health is concerning.  The picture she paints in her affidavit is of some post-partum anxiety which was the subject of treatment or medication for a short period but which no longer troubles her.  There is certainly no current medical evidence one way or the other from the mother.  She gives evidence of engaging with a psychologist but that seems to be more historical than anything else.  And yet she doesn’t mention the mental health plan from February this year, the prescription or the referral to a psychologist.  She does not suggest that she has followed that up. 

6. Paradoxically, it is the father raising those issues about the mother’s mental health, in circumstances where there is, on the mother’s case, no real evidence of it when at the same time, it is the mother’s case that were she required to move back to Townsville, her mental health would be impacted such that it would impair her capacity to provide care for X.  It was said that she requires the support of her family in Melbourne, both financial and emotional.  But there is no support for those submissions in the evidence.  At best what I am being asked to do is to draw an inference that the mother requires support by reason of what she has deposed to as being postpartum anxiety and that the only way she can receive that support is to live in Melbourne. 

7. On her own case she was receiving financial support whilst living in Townsville from her mother.  There is nothing in the evidence to suggest that if she were to return to Townsville that would not continue.  Nor is there any suggestion that the father’s financial support would not continue either.  She deposes in her affidavit to having, at the moment in Melbourne, free accommodation and that her grandmother meets her food expenses.  The purport of her evidence is that she does not have accommodation or food costs.  But then a few paragraphs later she talks about the financial support she receives from her aunt who meets her incidental costs as well as her legal expenses - sorry, her mother I should say, who meets her incidental expenses and her legal expenses.  On the mother’s evidence at paragraph 19 of her affidavit she receives $1500 a fortnight in Commonwealth benefits.  She receives money from the father, which he deposes to being $200 a fortnight, I think.  She deposes that her grandmother provides her with rent free accommodation and food and her mother meets her incidental expenses – her and X’s incidental expenses and legal costs.  Somewhat inconsistently, in paragraph 19(f) of her affidavit she deposes that since separation she has met all of X’s expenses, including his food, clothing and other necessities.  But, of course, having regard to her earlier evidence, that to which I have just referred, that is just not so. 

8. The mother’s proposition that she cannot afford to live in Townsville on her own is not made out on her evidence.  While she would have to meet accommodation expenses in Townsville, and perhaps her own food expenses, as I have indicated, her mother has done that in the past.  And there is no suggestion she will not continue to do so. 

9. Insofar as the mother’s case is that if she was required to live in Townsville with X that she wouldn’t have the capacity – the financial capacity or the emotional capacity – to do so because she would be bereft of financial or emotional support  I reject her arguments.  They are not made out on the evidence. 

10. There is another reason to talk about the mother’s capacity.  The letter of 7 March was the first letter or the first indication, according to the evidence of both parties that the mother and X had moved to Melbourne.  The letter was from her lawyers.  She called upon the father to make a proposal about the time that he should spend with X.  There are two things wrong with that.  The first is that nobody is interested in the time that he should spend with X.  What we are all interested in, or ought to be interested in, is X’s time with the father.  The focus is this child and his relationships, not the other way around.  The second problem with what she proposed, or what she asked, was that it was she who moved.  It was she who put X in a position where he could no longer spend regular and frequent time with his father and yet she makes no proposal of her own for that to be facilitated in any way.  Rather, she calls upon the father to do the heavy lifting in that regard.  That, in my view, represents an impairment of her capacity to make child-focus decisions.  It is clear that the move to Melbourne was not very well thought out because no thought appears to have been given by her about how X’s relationship with his father might be maintained. 

11. The mother’s case is that – and it is set out in her affidavit and in the correspondence - that she was forced to flee Townsville because she was scared. I can make no findings about the subjective feelings of the mother nor do I intend to.  But the evidence viewed at an objective level does not bear out her assertion.  What the evidence shows is that first of all there were arguments between these parties.  So much is conceded.  What the evidence shows is that there was name calling.  People often call each other names, particularly in the heat of a breakdown of a relationship.  And there is a contest about whether there was physical violence.  The mother’s affidavit alludes to some of it.  But there is no particularity, apart from an assertion that there was a child gate ripped from a wall.  There are alternative explanations given in relation to that - see the father’s mother’s affidavit and his affidavit. 

12. The mother when she moved to Melbourne made an application for an apprehended violence order or an intervention order, whatever it is called in Victoria, and she attaches to her affidavit the application for that.  It takes the form of what looks like a draft statement because it forms part of an email from somebody, it is a bit difficult to tell who, asking if what is set out in the statement is correct.  And if so, it asks for the mother to sign what is called a declaration of truth or something to that effect. 

13. There are two things about that.  First, there is no acknowledgement by the mother that what is set out in the statement is true in response to the request from the person from whom the email emanated.  Second, she does not swear to its veracity in her own affidavit.  So the probative value of what is set out in that application, if that is what it is, is very low, indeed.  There is no sworn testimony about it. 

14. Which brings me to the intervention order.  It was said that I should place significant weight on that.  I decline to do so.  It was an order that was made without the application even being served on the father and about which he has not been heard.  I have no idea what transpired before the magistrate who granted the order.  And in those circumstances, apart from recording that there is the order in place, it is in my view, otherwise meaningless having regard to the matters that I need to determine for the purposes of this application. 

15. If X is to remain in Melbourne, then the relationship that he had in his short time established with his father and with his mother will change.  It must change necessarily given the age of this child who does not have a well-developed cognitive facility.  Hence the reason and need for short periods of regular and frequent time.  His relationship with his father in particular will necessarily change.  And I do not suggest for a moment that it will change in a good way.  His relationship with his mother might - will, in my view, necessarily change as well because he will spend more time with her than he is ordinarily used to.  Whether that would be a good thing or a bad thing I am not prepared to speculate upon but it will be a change and has been a change for him.  The father’s proposal would restore X’s experiences to him of being cared for by both of his parents, there not being long periods of time between those experiences with both his mother and his father.  That would be consistent with his best interests.  The mother’s proposal would carry the negatives to which I have just referred. 

16. It goes without saying, having regard to the findings I have made about capacity, that if the father’s proposal was accepted there would not be any negative effect to X by reason of his mother having to move back to Townsville and she feeling bereft of support. 

17. In her affidavit the mother says on several occasions that she requires the support of her extended family in Melbourne.  However, apart from the matters to which I have already referred, she does not actually set out the support that she obtains from her family in Melbourne.  There is no evidence, just the assertion.  There is no particularity, just generality.  The lack of specificity and evidence detracts significantly from the mother’s case. 

18. If the father’s proposal was accepted there would be other benefits to this child.  That is a restoration of his experiences.  I draw back from saying relationships.  But his experiences and perhaps his opportunity to develop relationships with the members of the father’s family who live in Townsville.  But that matter is, of course, counterbalanced by the same detriment that would befall X if he was to move to Townsville having regard to the fact that his mother’s grandparents live in Melbourne.  His opportunity to develop his relationships with them and the maternal great grandmother in particular would be much, much less.

19. This is a parenting case that needs to be decided according to this child’s best interests.  Just because one party lives in Melbourne and the other party lives in Townsville it does not mean that there is a separate set of rules that apply to the resolution of it.  Having said that, it is necessary to record the approach set out in Full Court in cases Campbell & Spalding [1998] FamCA 66 and Morgan & Miles [2007] FamCA 1230, which is to the effect that before the Court makes a decision about what is in the best interests of a child, and whether those best interests are served by particular arrangements like a relocation, the Court needs to be able to consider the child’s position without the situation of recent development put in place by the unilateral actions of one or other with the parties. In the course of submissions and discussing that with counsel for the mother I might have used the word “principle”. I’m not so sure it is a principle. But it is a reflection of the best interest principle and how the Court might approach a resolution of the best interests of a child in such circumstances. Certainly the authorities tend to demonstrate that what was said in Campbell & Spalding remains good law. 

20. All of that means, I think, that X should return to live in Townsville.  Much was said about the proposition that these parties have only lived for five or six months in Townsville before the parties departed to Country D.  They returned in January or February and lived here and then went to Melbourne in March.  But it is not about physical location.  It is not about whether the parties were settled in one place or another.  It is about relationships.  And it is about this child’s entitlement to a meaningful relationship with each of his parents and his entitlement to be cared for by each of his parents.  That is what was happening before the move.  Those entitlements were being met.

21. The mother wishes to upset that arrangement.  Whilst there is no onus on her to demonstrate any particular reason to upset them it should not be considered in light of what she is proposing already having been put in place and the effect that will necessarily have on the relationship between X and his father. 

22. It was said in the course of argument that one matter that militates against the making of such an order is the fact that the father could work in Melbourne.  I have considered that carefully.  But to go to Melbourne he would have to find accommodation.  And given that this is an interim application it might be that at a final hearing when proper findings can be made about the capacity of the father to live in Melbourne for the purposes of advancing the relationship with his son it might be thought appropriate that he should live there. 

23. The other side of that coin is that the mother can return to Townsville to live in the rented accommodation.  There is evidence about the lease being terminated and the like but the lease is signed up until June of 2021.  The father has alternative accommodation.  He lives with his parents.  And one would expect that a return to Townsville with the financial support that I have already indicated would not be a particular impost.  There is also the prospect that the mother might obtain employment here.  There is absolutely no evidence before me that she will not obtain employment or cannot obtain employment here.  Only that she has tried to obtain it in Melbourne but seems has chosen not to work because she cares for X.  The father’s evidence is that here there is a day care place booked for him such that if either of these parents have to work or desire to work, he can be cared for there.  And, of course, the father’s parents are able to care for him as well, there being in place in the past some arrangements for them to care for X two days a week.  So the types of supports that might be available in Melbourne, albeit it through the father’s family rather than the mother’s family, are also available here. 

24. For those reasons, I am satisfied that X should return to live in Townsville.  It will be a matter for the mother as to whether she returns or not.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 12 April, 2021.

Associate:

Dated:       28 April 2021