MURAD & PAVRI
[2014] FamCA 1138
•17 December 2014
FAMILY COURT OF AUSTRALIA
| MURAD & PAVRI | [2014] FamCA 1138 |
| FAMILY LAW – CHILDREN – Undefended proceedings – where father has failed to engage in proceedings – where the father lives interstate – where the mother wishes to relocate overseas with the child – where the father has not seen the child for ten months – where the child is very young – consideration of best interests of the child – mother permitted to relocate. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Goode & Goode [2006] FamCA 1346 Malcolm & Monroe and Anor (2011) FLC 93-460 Morgan & Miles (2007) FLC 93-343 Taylor & Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Murad |
| RESPONDENT: | Mr Pavri |
| FILE NUMBER: | PAC | 4538 | of | 2013 |
| DATE DELIVERED: | 17 December 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 1 December 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barber & Massey |
| RESPONDENT: | No appearance |
Orders
That the mother Ms Murad have sole parental responsibility for the child X born … 2013.
That the child live with the mother.
That the mother be permitted to relocate the residence of the child to Country C.
That the mother is authorised and permitted to travel internationally with the child X born … 2013.
That the mother is authorised and permitted to apply for and receive an Australian passport for the child X born … 2013 without first obtaining the consent of the father.
That the mother keep the father informed of the child’s progress by sending to the father a photograph of the child on each of the child’s birthdays and copies of school reports, as a soon as practicable after they are received by the mother.
That the mother inform the father of all specialist medical practitioners to whom the child is referred and any hospital admission of the child and do all things necessary to authorise the father to obtain such information as to the child and treatment of the child he may reasonably request.
That the father spend time with and communicate with the child as agreed to by the mother and father in writing, such writing to include SMS and email communication.
Liberty to the mother to apply as to implementation of these orders.
That otherwise all applications before the court be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Murad & Pavri 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 PARRAMATTA |
FILE NUMBER: PAC 4538 of 2013
| Ms Murad |
Applicant
And
| Mr Pavri |
Respondent
REASONS FOR JUDGMENT
Introduction
The child X, born in 2013, is the only child (“the child”) of Ms Murad (“the mother”) and Mr Pavri (“the father”).
The parents commenced a relationship while in different countries in 2007. The parties became engaged in 2008 in Country C and married in 2009 in Australia. The parties commenced cohabitation in Australia in early 2012.
The child is now nearly two years of age.
The mother seeks orders that she be permitted to relocate to Country C with the child and have sole parental responsibility for the child. If the mother is not permitted to relocate, she seeks orders that the father spend progressive time with the child, progressing to alternate weekends and half of the school holidays, when the child commences school.
The father lives in Melbourne and has failed to adequately engage in these proceedings.
The mother’s application and Notice of Abuse were filed on 12 October 2013 with a return date of 3 December 2013. The mother alleges in the Notice that the father has been abusive to her and the child has witnessed these events of family violence. On the return date the father was represented on a duty basis by the duty solicitor. Directions were made for the father to file a Response within seven days and the parties were to attend an intake event for the Child Responsive Program on the 2 April 2014.
The father has not filed a Response.
The Child Responsive Program Memorandum was released to the parties in June 2014. The father was informed of the listing date for the commencement of the Less Adversarial Trial (“LAT”) by letter from the Registry on 1 May 2014 and on 1 August 2014. The father failed to appear on the first day LAT event on 29 August 2014. Leave was granted to approach the List Clerk for a date for undefended hearing and directions for trial were made.
The mother’s application was listed for undefended hearing on 1 December 2014. The mother’s solicitor notified the father of the undefended hearing date by letters dated 15 September 2014 as directed by the court and further notified the father of the undefended hearing date by email on 17 September 2014.
The mother’s solicitor sent to the father a copy of the Minute of Order to be sought by the mother at hearing by email on 27 November 2014.
The matter was heard on an undefended basis on 1 December 2014.
The mother seeks final orders in accordance with a minute of order attached to her case outline (Exh A). She seeks orders that:
a)The mother have sole parental responsibility for the child;
b)The mother be permitted to relocate to Country C with the child;
c)The father give the mother his Australian Citizenship certificate within seven days;
d)The mother to arrange an Australian passport for the child, and return the Citizenship certificate to the father;
e)The mother is not to use the Citizenship certificate for any other purpose than obtaining the child an Australian passport;
f)The father duly sign the passport application and return it to the mother;
g)The mother to keep the father informed of the child’s progress by sending the father a photograph of the child at each birthday and school reports, when she commences school;
h)The mother is to notify the father of all specialist medical appointments and hospital admissions relating to the child 14 days prior to any such appointment or admission, or within 24 hours if an admission is an emergency. Notification is to include name and location of the hospital;
i)The father is to spend time with and communicate with the child:
i)Until the mother relocates: each Saturday and Wednesday between 3:00 pm and 5:30pm;
ii)When in Country C:
(1)Any reasonable time in person in Country C and the father is to give 28 days’ notice in writing of his intention to travel and spend time with the child;
(2)In an age appropriate way via Skype weekly, by agreement between the mother and the father, and if failing to agree, each Monday at 5:00pm, Toronto time;
(3)After the child is 5 years old, in Australia on one occasion per calendar year for a period of not less than 3 weeks. The father is to be responsible for return airfares, including for an accompanying adult as required by law, regulation or airlines policy provided such time is during the child’s school holidays. Further the father shall give the mother not less than 42 days’ notice in writing of each occasion of his intention to exercise such time and the father is to provide the mother with copies of pre-paid return airfares and itinerary not less than 14 days prior to travel.
j)If the mother is not permitted to relocate with the child:
i)The child will spend time with the father in Sydney each Saturday and Wednesday between 3:00pm and 5:30pm until the child’s second birthday;
ii)From 9:00am to 5:00pm each Saturday until the child’s fourth birthday;
iii)From the child’s fourth birthday, every second weekend from 9:00am Saturday to 5:00pm Sunday;
iv)From when the child commences kindergarten, every second weekend from after school Friday until 5:00pm Sunday during school terms, and for one half of the school holidays, as agreed.
k)Each party is restrained from or allowing any other person to denigrate the other party in the presence of or within hearing of the child;
l)Whilst the child is in the father’s care, and for a period of 24 hours prior to the child coming into the father’s care:
i)The father is to refrain from consuming alcohol to excess and to a point wherein he would not be legally able to drive (that is, below 0.05 blood alcohol level);
ii)The father shall not transport the child in any motor vehicle if he has been drinking and shall not drink whilst driving the vehicle;
m)The father will not smoke cigarettes in the presence of the child and will use his best endeavours to discourage other persons from smoking cigarettes in the presence of the child.
Background
The parties participated in the Child Responsive Program with a Family Consultant and a Children and Parents Intake Assessment (CAPIA) report was prepared by Ms G.
The Family Consultant met with the mother alone on 2 April 2014, and conducted the interview with the father by telephone. The parties and the child attended for a Child and Family Meeting on 13 May 2014. The report (Exh B) was prepared and is dated 12 June 2014.
The mother relies on:
a)Amended initiating application filed on 3 December 2013;
b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 22 October 2013;
c)Her affidavit filed on 14 November 2014;
d)Affidavit of Mr M (the mother’s brother) filed 14 November 2014;
e)Affidavit of Vaughan Francis Massey (mother’s solicitor) filed 1 December 2014.
The mother and father were both born in Country A. The mother is now aged 28 and the father is aged 31. Both of their families relocated from Country A to Country B in the 1990’s. The father’s family moved to Australia in the late 1990’s and the mother’s family were accepted as refugees to Country C in 2002.
The mother became a Country C citizen in 2006.
The parties have known each other since their childhood with their fathers being classmates in Country A. The parties emailed during 2007, and the father travelled to Country C to become engaged to the mother in September 2008. The father then returned to Australia and the mother remained in Country C.
The parties married on in 2009 in Victoria, Australia.
The mother returned to Country C early in 2010.
The father then travelled to Country C for the mother’s brother’s wedding in early 2011 and he returned to Australia in February 2011.
The father saw the mother early in 2012 when he travelled to Country C. The parties celebrated their wedding with the mother’s family and friends in Country C in early 2012. The mother then travelled to Australia with the father on a visitor’s visa in January 2012. The parties filed the mother’s visa application in April 2012; the mother was then accepted for a bridging visa with an entitlement to work.
The mother fell pregnant in mid 2012.
The mother says that the period of time which they lived together was characterised by domestic violence including verbal abuse and physical violence perpetrated by the father on the mother, including during the time which she was pregnant.
When the mother was due to give birth, the mother’s sister who lives in Sydney travelled to Melbourne to support her. The maternal grandmother also travelled to Melbourne.
The mother gave birth to the child in 2013.
The maternal grandmother stayed with the mother and father for ten days after the birth of the child. The maternal grandmother returned to Country C in February 2013.
Following the mother’s request on 25 February 2013, the paternal grandfather and father’s sister came to the parties’ home to attempt to mediate the mother and father’s differences.
On 8 March 2013 the mother says that the father squeezed the child’s nose, which appeared to hurt the child. The mother told the father not to do that because it may hurt the child. The father then became aggressive and slapped the mother in the face, while she was holding the child. The mother then left the apartment with the child and travelled by taxi to the paternal grandparents’ home. The mother says she had nowhere else to go in Melbourne.
The mother and the child lived for a period of one month at the paternal grandparents’ home in Melbourne. When the father came to visit his parents, he largely ignored the mother.
On 13 March 2013 the child had a medical appointment. The father collected the mother and the child from the paternal grandparents’ home and drove them to the appointment. After the appointment the father drove them back to the apartment where they had lived together. The mother says she asked the father whether she and the child should stay with him at the apartment or go back to the paternal grandparents’ home. The mother says the father responded that they should have a break, and that the mother and child should not be a burden on his parents. The father suggested that the mother move to Sydney so they could have a break. The father said he would call the mother when he was ready for her to return. He asked the mother for her keys to the apartment and the car.
In April 2013 the mother and the child travelled to Sydney by plane.
The mother and the child then commenced living with the mother’s sister, Ms N and her two daughters, who are aged 19 and 17.
In May 2013 the mother says she attempted to contact the father to retrieve the child’s birth certificate in order to register her in the Medicare system.
In January 2014 the mother became a permanent resident of Australia.
The father was out of the country in February 2014 and did not contact the child for her first birthday.
The mother’s current circumstances
The mother and the child remain living with the mother’s sister and her two daughters.
Currently the mother’s main source of income is through government benefits by Centrelink. The mother also attempts to contribute to the sister’s household by way of purchasing groceries. The mother also receives money from her family in Country C when required.
The mother does not receive any child support from the father. The mother says she applied for an assessment from the Agency and then received threatening messages from the father, so she cancelled her application.
The mother is currently studying full time at University, completing a Master’s Degree. She has completed her other studies in Country C including high school and a Bachelor of Arts with First Class Honours.
The child attends child care while the mother attends University. The child has been attending child care since 26 February 2014.
The father knows where she and the child are living in Sydney and he has not attempted to contact or spend time with the child.
The mother says that despite the father showing little interest and making little attempt to spend time with the child or contact the mother in relation to this, that the child should have a knowledge of her father. The mother intends to speak to the child about her father in an age appropriate way for her stages of development. If the father requests it, she will provide him with a photograph of the child at about the time of her birthday each year, and that if he requests more frequent photos she will oblige. If the father asks, she will send him the child’s school reports and school photographs. The mother wishes for the father to send her photographs of himself from time to time to show the child and to talk to the child about her father.
The mother says that if she is not permitted to relocate to Country C she will complete her studies here in Australia and gain qualification as a teacher.
The mother’s circumstances in Country C
The mother has made enquiries with previous employers about employment opportunities for her in Country C. A previous position that was open to her prior to her leaving for Australia is still open to her in Country C. The mother is confident that her previous and current studies will allow her to obtain full time employment to be able to support herself and the child in Country C.
In Country C the mother will have her familial support including her parents and other siblings and extended family.
The mother says that the child would be enrolled in a preschool from the age of three and will commence kindergarten at approximately the age of five.
The mother says that the father would be at liberty to visit the child in Country C at any time which he could travel there. The mother also states that she would be prepared to travel with the child to Australia once per year, if the father paid the cost of the return travel, and that the period would not be greater than one month. The mother suggests that the time the father would spend with the child in Australia would depend upon the child’s age and the present development of their relationship. Further, the mother will facilitate and encourage Skype communication between the child and the father.
The Children and Parents Issue Assessment
The Family Consultant conducted an interview with the mother in person on 2 April 2014 and by telephone with the father on 2 April 2014. The parents also attended with the child on 13 May 2014.
The Family Consultant noted that during the observation of the mother and the child, that the mother appeared to be focused on the child’s interests throughout the observation session and that the child appeared to be comfortable, relaxed and confident throughout. When the mother left the room, the child became distressed and began to cry.
When the father entered the room and held the child, the child continued to cry. The father walked the child around the room and showed her different toys. The child would briefly stop crying to look at the toy and would then recommence crying. The Family Consultant observed that the child appeared to become stiffer while in the father’s arms. After approximately ten minutes the Family Consultant stopped the observation session due to the child’s distress. The child was returned to the mother and she stopped crying.
During the interview between the Family Consultant and the mother, the mother informed the Family Consultant that she wished to move to Country C with the child because she had family, tertiary qualification and a part time job in Country C. The mother said that if she did have to remain in Australia that she preferred to remain in Sydney rather than Melbourne, as she did not feel safe in Melbourne and that the child was attending day care in Sydney. She further stated that she wanted any time the child spent with the father in Sydney to be supervised.
The mother alleged that the father had been violent to her during their relationship, including while pregnant with the child. The mother also told the Family Consultant that on the day of separation that the father slapped the mother and pinched the child’s nose. She stated that initially she was willing to reconcile with the father as the child was only a month old and she also needed the assistance of the paternal family. However, she says that since she stayed at the home of the paternal family that the father has “lost interest” in the child.
She also stated to the consultant that the father said that the mother and child needed to travel to Sydney or Country C to “give things a chance to settle” down in April 2013. The father then booked a one way ticket to Sydney, with no time frame of when she and the child would return to Melbourne.
The mother also alleges that the father has shown no interest in the child following separation. She said that the father had not requested any pictures, not inquired about her well-being and had not contacted the child for her first birthday or Christmas.
During the interview between the Family Consultant and the father, the father told the Family Consultant that he did not agree with the mother moving to Country C with the child, or remaining in Sydney. The father said that he was initially depressed following separation and that he thought the mother would return to Melbourne with the child. He denied booking the mother a one way ticket to Sydney.
The father stated that he was diagnosed with depression and attended on a psychologist, Dr S. He said that he had taken initially anti-depressant medication but was not presently doing so.
The father denied the allegations of family violence to the Family Consultant. He denied pinching the child’s nose and instead alleged that the mother did this. He stated that he had concerns about the maternal family and the violent behaviour of all of them. The father also blamed the maternal aunt for his relationship breakdown, saying that she manipulated the mother against him.
The father also stated that he had not received any information about the child and that he was unaware that she attended day care.
The Family Consultant noted that the child was unable to be comforted by the father and that this may be due to the lack of an established relationship between the child and the father. The Family Consultant suggested that if the child and the father are to establish and develop a relationship, that the child should spend short periods of time with the father on two or three occasions per week. The child’s level of distress is likely to decrease over time as the child becomes more familiar with the father. The Family Consultant also suggests that the child spend time with the father in the city that she is currently living to reduce the burden of travel on the child.
The Family Consultant noted that the father denied the allegations made by the mother, and that these are matters for determination by the Court. The Family Consultant noted that further assessment was required to investigate the father’s negative feelings and concerns regarding the maternal aunt, and the mother’s concerns about the paternal family not acting protectively.
The Family Consultant noted that it was for the Court to determine whether in the interim the child was to live in Sydney or Melbourne.
The Family Consultant concluded that an Independent Children’s Lawyer be appointed in the matter, that interim orders for the father spending time with the child may be required and that a Family Report may be of assistance to the court if the matter were to proceed to a final hearing.
The issues for determination
The primary issue in this case is whether it is appropriate to allow the mother to relocate overseas to Country C with the child with consideration to what is in the child’s best interests.
The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode [2006] FamCA 1346. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act. The objects of Part VII are to ensure that the best interests of the children are met by both parents having a meaningful relationship with the child, that the child is protected from physical or psychological harm, that they receive adequate and proper parenting, and that parents fulfil their duties and meet their parental responsibilities.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to have regard to the best interests of the child as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the court is to take into account in determining what is in the child’s best interests.
Relocation
In AMS and AIF (1999) 199 CLR 160, his Honour Justice Kirby said:
[144] … a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. … (footnote omitted).
This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases, such that there may be a perception that they are a unique type of case to be determined differently from others.
The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343) is clear in that such cases remain to be determined, like all parenting matters, by considering the best interests of the child in the context of the legislative framework.
In Taylor & Barker (2007) 37 Fam LR 461, their Honours Bryant CJ and Finn J said:
[53] … when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible. (citations omitted)
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
In Morgan & Miles (supra), Boland J at [79]-[81] identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour said:
[79] In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
These principles were cited with approval in Malcolm & Monroe and Anor (2011) FLC 93-460, where the Full Court said:
[83] We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
The presumption of equal shared parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in respect of final proceedings where:
a)There are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence [s 61DA(2)];
b)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
Section 60CC considerations
The primary considerations: s 60CC(2)
Benefit of a meaningful relationship with both parents
The child has no relationship with the father and the strong inference is that he does not seek one. The child clearly is bonded to the mother who is the child’s primary attachment. It is important for the child’s attachment to the mother to continue in circumstances where the mother is not subject to the stresses of a new country, difficulties in providing for herself and the child financially and being estranged by distance from her extended maternal family.
The need to protect the child from harm
The mother has been subject to violence at the hands of the father, violence to which the child has been exposed. The father has also subjected the child to violence. The mother relocating to Country C would remove any risk from such conduct.
Additional relevant considerations: s 60CC(3)
a. Views and maturity of the child
The child is currently nearly two years of age. This consideration is of no assistance as to wishes but the child’s bonding with the mother in observation is clear.
b. Nature of the children’s relationship with their parents and other significant persons
The Family Consultant observed that the child and the mother had a good relationship. The mother appeared to be focused on the child’s interests throughout the interactive observation session. The Family Consultant observed that the child appeared comfortable, relaxed and confident throughout the session.
The father was unable to comfort the child as the child began to cry once separated from her mother. The father walked around the room with the child and showed her various toys. The child stopped crying to briefly look at the toy and recommenced crying. The father was unable to stop the child from crying, and due to the child’s high levels of distress the Family Consultant stopped the session after approximately ten minutes.
The mother presents as the child’s primary attachment figure. It is important to promote this attachment, especially where the father has failed to engage with the child.
c. The extent to which each of the parents has failed to…. take opportunities to communicate with the child
The mother alleges that the father has “lost interest” in the child and that he has not requested any photographs of the child or attempted to communicate with the child on her birthday or at Christmas. Regrettably there is no prospect of change as the father has failed to engage in these proceedings or with the child.
ca. The extent to which each of the parent’s has fulfilled or failed to fulfil, the parent’s obligations to maintain the child
This burden has been imposed on the mother without assistance from the father. The mother will continue to assume this burden and it appears that the father has no intention of so doing.
d. The likely effect of any change in the child’s circumstances
Usually this is an important consideration in relocation matters. However the father has failed to engage in the life of the child at all. The child is very young and presumably will be comfortable in the care of the mother wherever she settles.
e. Practical difficulty and expense of a child spending time with and communicating with a parent
There will be an issue in this regard as to the father as he has failed to engage at all. The mother offers arrangements that will address to some extent this issue but whether the father takes up any opportunity is problematic.
f. The capacity of each of the child’s parents
The mother has the demonstrated capacity to provide for the child as she has done to date and will do so into the future. The father is for reasons referred to above completely untested.
g. Maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of their parents and any other characteristics of the children that the court thinks are relevant
The child is very young and needs to settle into circumstances that will promote stability and development. This will be with the mother.
The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother for the reasons set out above has demonstrated an appropriate attitude. The father has not.
j. Any family violence involving the child or a member of the child’s family
The father has perpetrated violence on the mother and child as referred to above.
k. Any family violence order that applies to the child or a member of the child’s family
Not applicable.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The circumstance of the child in the context of the mother’s relocation application needs to be resolved. It is preferable to make final orders.
Any other fact of circumstances that the court thinks is relevant
Not applicable.
Parental responsibility
The father has perpetrated family violence on the mother and child. He has otherwise failed to engage in the child’s life and these proceedings. The application of the presumption is not in the child’s best interests. The mother will have sole parental responsibility.
As a consequence the court is not required to consider s 65DAA of the Act and whether equal or substantial and significant time is in the child’s best interests and reasonably practicable.
The court is satisfied that the orders sought by the mother are in all of the circumstances in the best interests of the child. The mother will be permitted to relocate.
The mother seeks orders as to the father’s Citizenship certificate. There is no suggestion he will comply. It is appropriate that the mother be able to obtain a passport for the child without the father’s signature.
Orders will be made as set out at the forefront of these reasons for judgment.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 December 2014.
Legal Associate:
Date: 17 December 2014
Key Legal Topics
Areas of Law
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Family Law
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