PARISH & ALGERS
[2021] FamCA 291
FAMILY COURT OF AUSTRALIA
| PARISH & ALGERS | [2021] FamCA 291 |
| FAMILY LAW – CHILDREN – RELOCATION – child not wanting to relocate – child 11 years old – relocation order refused. |
| Evidence Act 1995 (Cth), s 128 Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64A, 65DAA |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 AMS v AIF (1999) 199 CLR 160 Asher v Wilkinson (2020) 61 Fam LR 523 Jones v Dunkel (1959) 101 CLR 298 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Sir Thomas Bingham, The Judge as Juror: the Judicial Determination of Factual Issues (1985) 38(1) Current Legal Problems 1 |
| APPLICANT: | Ms Parish |
| RESPONDENT: | Mr Algers |
| FILE NUMBER: | HBC | 797 | of | 2020 |
| DATE DELIVERED: | 13 May 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 22, 23, 29 & 30 March 2021, 16 & 26 April 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms K. Mooney SC |
| SOLICITOR FOR THE APPLICANT: | Tremayne Fay Rheinberger |
| COUNSEL FOR THE RESPONDENT: | Mr M. Turnbull SC |
| SOLICITOR FOR THE RESPONDENT: | Ogilvie Jennings |
Orders
Parental responsibility
The mother and the father have equal shared parental responsibility for X born … 2010.
Live with and spend time with arrangements
X live with the mother.
X spend time with the father during school terms as follows –
(a)from the conclusion of school on Friday until before school on Monday (or 4.00pm if a non-school day) and each alternate weekend thereafter;
(b)every Wednesday from the conclusion of school until 7.00pm, with handover to be at the mother’s house; and
(c)such other or alternate time as may be agreed between the parties in writing.
During the term school holiday periods (being the term 1, term 2 and term 3 holidays) X spend equal time with her parents, with X to spend the first half of the holidays with the father (from the conclusion of the school Term until 4.00pm the following Saturday) and the second half of the holidays with the mother (from 4.00pm on the first Saturday until the commencement of the new school term) unless otherwise agreed between the parties in writing.
For the summer school holiday period –
(a)in odd numbered years X spend time with the father and the mother on a week on/week off basis, commencing with the father from the conclusion of the final day of the school year with handover to be at 4.00pm at the conclusion of each week of time with the parent with whom X is spending time to be responsible for the delivery of X to the home of the other parent;
(b)in even numbered years X spend time with the father and the mother on a week on/week off basis, commencing with the mother from the conclusion of the final day of the school year with handover to be at 4.00pm at the conclusion of each week of time with the parent with whom X is spending time to be responsible for the delivery of X to the home of the other parent; and
(c)such other or alternate time as may be agreed between the parties in writing.
On non-school days the relinquishing parent will deliver X to the home of the receiving parent at the commencement of the receiving parent’s time with X.
Special occasions
Notwithstanding the orders above, X spend time with the mother and father as follows –
(a)Christmas Day 2021 and each alternate year thereafter with the mother from 4.00pm Christmas Eve until 4.00pm on Christmas Day and with the father from 4.00pm on Christmas Day until 4.00pm on Boxing Day;
(b)Christmas Day 2022 and each alternate year thereafter with the father from 4.00pm Christmas Eve until 4.00pm on Christmas Day and with the mother from 4.00pm on Christmas Day until 4.00pm on Boxing Day;
(c)on X’s birthday (…) X will spend time with her parents for her birthday, as agreed between the parties, and failing agreement, as follows –
(i)if X is due to wake up in the mother’s care, with the father from the conclusion of school until 7.00pm (if a school day) or from 2.00pm until 7.00pm (if a non-school day); and
(ii)if X is due to wake up in the father’s care, with the mother from the conclusion of school until 7.00pm (if a school day) or from 2.00pm until 7.00pm (if a non-school day);
(d)Easter 2022 and each alternate year with the mother from 4.00pm on Good Friday until 4.00pm on Easter Tuesday;
(e)Easter 2023 and each alternate year thereafter with the father from 4.00pm on Good Friday until 4.00pm on Easter Tuesday; or
(f)such other or alternate time as may be agreed between the parties in writing.
Phone communication
Whilst X is in the care of the mother, the father have video/phone communication with X every second evening between 6.45pm and 7.15pm in addition to any other communication by Facebook, SMS text message or any other social media or electronic platform.
Whilst X is in the care of the father, the mother have video/phone communication with X every second evening between 6.45pm and 7.15pm in addition to any other communication by Facebook, SMS text message or any other social media or electronic platform.
Other
Neither party denigrate the other party or their respective partners to X or in her hearing and/or presence.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parish & Algers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: HBC 797 of 2020
| Ms Parish |
Applicant
And
| Mr Algers |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother of her 11 year old daughter born to the applicant and respondent has applied for a relocation order the effect of which will cause the child to move interstate away from her father. The father opposes the application.
The mother advanced several reasons in support of her relocation application. In no particular order they were –
a)the mother’s desire to put distance between the father and her;
b)the opportunity of her new partner to pursue career changes;
c)her desire to be nearer her ailing father;
d)her desire to live proximate to other family members; and
e)the mother’s desire to return to the state in which she was raised and to live proximate to where she attended university.
The father’s opposition to the relocation was based largely on the child’s expressed wishes to remain in Tasmania. He also contended that the child has a strong familial connection in Tasmania for which no good reason has been given to disturb it.
This case was hard fought. The parties had the good fortune to have the highest calibre in legal representation – instructors and Silk.
Each party, quite properly and realistically, advanced his and her case proposing orders if the relocation application were granted as well as orders if the relocation application were refused.
Synopsis
For the reasons that follow, in my judgment –
a)the relocation application must be refused;
b)each parent is to have equal shared parental responsibility for the child;
c)the child is to live with the mother; and
d)the father is to have time with the child in accordance with the regime recorded earlier in these reasons.
The relevant persons
The mother is 41 years of age. She was raised in the State of Queensland. She is one of three sisters, Ms B and Ms C being her siblings. Her mother passed away in 2010. Her father is in poor health and lives in Town D. The mother is an allied health professional by occupation.
The father is 48 years of age. He was born in the United Kingdom. He visited Australia in 2009 on a holiday and stayed. He met the mother in 2009. They commenced a romantic relationship in the same year and they began to live together in October 2009.
The child who is the subject of this relocation application was born in 2010. She is now 11 years of age. She was born in City E and moved with her parents to Tasmania in March 2013 so that her parents could assist the mother’s sister run her business.
The parties separated in September 2013.
The father has repartnered with Ms F to whom he is engaged to be married.
The mother has repartnered with Mr G with whom she has another child, almost two months of age.
The mother and Mr G gave evidence as did the father and Ms F. Each was cross-examined. In addition, the author of the child inclusive memorandum gave viva voce evidence. She did not prepare a comprehensive family report.
The child’s current circumstances
The child has the good fortune to be loved by both of her parents as well as by the current partners of each parent. The child lives with the mother. The father spends time with the child. A debate emerged during the trial whether the father had availed himself of as many opportunities as he may have in spending time with the child. In the passages below I have addressed those criticisms.
The father’s fiancée, Ms F, has a son from a previous relationship, Mr H. Mr H is 28 years old and has developmental issues.
The child is coming to the end of her primary school education. It was common ground that the child has been the subject of bullying and that she has suffered from anxiety. No detailed medical or psychological evidence was adduced in this litigation about the child’s psychologic issues so it was not possible to assess the nature of the child’s anxiety and its likely impact on her coping skills hereafter. So far as the bullying was concerned, it seems to have occurred in years gone by as the family consultant reported that the child is well supported at school at present among a circle of friends.
While it was true that the family consultant did not produce a detailed family report, the family consultant’s viva voce evidence revealed that the child was performing well at school and that she is a balanced 11 year old who is progressing well at an age-appropriate level.
Several persons were named in the evidence as having had a role or influence in the child’s life and in her development to this phase of her life. Among those other persons were the mother’s two sisters, neither of whom gave evidence in this proceeding. Mr Turnbull SC invited me to rely on the principles set out in Jones v Dunkel[1] to support the conclusion that they were not called on behalf of the mother because their evidence would not have supported the mother’s case. In the passages below I have addressed that argument.
[1] (1959) 101 CLR 298.
Applicable legal principles – in overview
It was common ground that the mother’s relocation application was an application for a parenting order within the contemplation of s 64A of the Family Law Act and that principles bearing upon the best interests of the child applied, especially those in s 60CC. It was also common ground that in any consideration of a relocation application, the considerations raised by s 65DAA were invoked. In this case the parties relied on a joint book of authorities in which, among many other authorities, the parties referred to my decision in Richter & Richter[2] where those principles were addressed. Of course, principles espoused by the High Court in cases such as AMS v AIF,[3] M v M[4] and U v U[5] continue to have application to relocation cases. Both counsel relied on Morgan v Miles.[6] No dispute emerged between the parties about the applicable legal principles. A very substantial debate emerged about the application of those principles, however.
[2] [2019] FamCA 507.
[3] (1999) 199 CLR 160.
[4] (1988) 166 CLR 69.
[5] (2002) 211 CLR 238.
[6] (2007) 38 Fam LR 275.
In Richter & Richter[7] I surveyed the relevant legal and factual considerations that apply to a relocation application. Since the decision in Taylor v Barker[8] this court has approached a relocation application by reference to –
a)considerations of the best interests of the child under s 60CC(3) of the Family Law Act; as well as
b)considerations of the time the child will spend with each parent under s 65DAA of the Family Law Act.
[7] [2019] FamCA 507.
[8] (2007) 37 Fam LR 461.
In addition, Ms Mooney SC for the applicant relied on the High Court’s decision in AMS v AIF.[9] There, Kirby J set out nine propositions representing general principles in a relocation case. Relevantly paraphrased, they may be expressed as follows –
[9] (1999) 199 CLR 160.
a)first, each case depends on the application of the governing legislation which is in a constant state of amendment and re-expression;
b)second, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in the context of the proposed relocation of the parent with whom the child resides;
c)third, 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 and if there is conflict between those considerations, priority must be accorded to the child’s welfare and rights;
d)fourth, having regard to a court’s reluctance to interfere in the freedom of a parent with whom a child lives, the applicable legislation is enacted and relevant discretions are exercised for a society that attaches high importance to freedom of movement and the rights of adults to decide where they will live;
e)fifth, while legislative reform (sometimes reflective of international law) has laid increased emphasis on the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one;
f)six, a more relaxed attitude should be adopted to relocation within Australia than relocation overseas;
g)seven, where a parent seeks to change arrangements affecting the residence of or contact with the child, the parent must demonstrate that the new arrangement is for the welfare of or in the best interests of the child;
h)eight, departure from the norm of shared parental responsibility is within the court’s discretion; and
i)nine, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety analysis of the primary judge’s reasons given the large element of judgment, discretion and intuition which is involved.
In addition to the matters to which I must have regard as are prescribed by s 60CC(3) and s 65DAA of the Family Law Act I have had regard to the observations made by Kirby J in AMS v AIF.
Before addressing the substance of the evidence each relevant witness gave on this application, it is necessary for me to record certain observations about those witnesses.
In greater detail
The mother – the applicant
The applicant was born in 1979. She is an allied health professional by occupation in respect of which she holds undergraduate and post graduate degrees. She was born and raised in south-east Queensland.
On the applicant’s version of events the applicant commenced a relationship with the respondent in December 2008. At the time, the respondent had emigrated from the United Kingdom and was living in City E, New South Wales. The applicant stated in her affidavit affirmed 29 January 2021 that she and the respondent commenced cohabitation in October 2009. At the time she was working as a public servant.
In 2013 the applicant, the respondent and their daughter, then about two years old, moved to Tasmania in order to assist the mother’s sister in the running of the sister’s business which they did until 2015.
The applicant gave notice to the father that their relationship was at an end in July 2013 after which the father moved out in August 2013.
The applicant has been in her current de facto relationship since September 2019. She said she commenced cohabitation with her new partner in March 2020. She has a newborn son with her current partner.
The father – the respondent
He was born in the United Kingdom in 1972. While holidaying in Australia he met the applicant in January 2009, according to his affidavit made 29 January 2021. He returned briefly to the United Kingdom in late February 2009 then emigrated to Australia when he commenced to live with the applicant in City E on 29 October 2009. By occupation he is an educator.
Self-evidently, the mother and father are not married.
The daughter
She was born in 2010. She recently celebrated her 11th birthday. Since 2013 she has lived in Tasmania.
She is the only child of the relationship between the applicant and the respondent.
It was common ground that the daughter suffers from anxiety, for which she is under the care of a psychologist. It was also common ground that the child has a personable and steady demeanour, she is positive about her schooling, she has friends at school who care for her, she enjoys music, art and riding horses.
The child has lived with the mother since her parent’s permanent separation.
The child enjoys a loving relationship with both parents. It appears that the child gets on well with the father’s new partner as well as with the mother’s new partner.
The child was subjected to bullying at school, although the details of that were scant.
The child is nearing the end of her primary schooling and in 2022 she anticipates entering secondary school.
The details of the information obtained by Family Consultant K during a child inclusive conference conducted on 27 November 2020 are addressed below.
The mother’s extended family
The mother’s ageing father resides in Queensland, currently in assisted accommodation. The mother’s mother has passed away. The mother’s siblings include a sister Ms B who once resided in Tasmania, who is now a medical professional and a sister Ms C who is a health professional.
The mother’s father lives in Town D, about 350km from Brisbane. Ms C lives near the father. Ms B lives in northern Queensland. The mother wishes to relocate to Suburb M, a place the mother said was close to where the mother attended university between 1998 and 2001. The mother deposed to feeling isolated in Tasmania.
The driving distance between the proposed place of relocation, Suburb M and the places of residence of the maternal grandfather and the mother’s sister Ms C is at least three hours away. The sister who lives in northern Queensland will not be visited regularly, according to the mother.
The father’s current domestic arrangements
The father is engaged to marry his partner, Ms F. She has a child from a previous relationship, Mr H, currently aged 28. The child the subject of this application and Mr H get on well, according to the information from the family consultant. Self-evidently, the proposed relocation will involve the child’s separation from the father’s fiancée as well as from Mr H.
As mentioned the father is currently employed as an educator.
The mother’s relocation proposal – in overview
The mother initially put forward a proposal that involved not only orders in respect of the child’s relocation but also an order for her having sole parental responsibility for the child’s medical and educational issues if she were to relocate with the child. That was amended during the trial. She contended that the father currently spends 52 nights per year with the child and that with the child relocating to Queensland no decrease in the father’s time with the child will be orchestrated. She proposed a configuration for the father’s time with the child, premised on his remaining in Tasmania. She said his time with the child could always be enlarged if the father were to travel to Queensland.
The mother gave evidence that she was unable to effectively co-parent with the father. In her affidavit made 29 January 2021 the mother deposed to her relationship with the father being strained since the child’s birth. She deposed to the time she devoted to her care of the child in the child’s formative months and she endeavoured to contrast that with correspondingly limited care of the child the father provided over the equivalent period. The mother also endeavoured to create an impression of a factual scenario in which the mother’s and father’s interaction was hostile, disrespectful and antagonistic ultimately leading to the mother’s contention on this application that the mother and father are unable to effectively and cooperatively co-parent with the consequence that the mother’s relocation proposal should be favourably considered. By way of illustration the mother took issue with –
a)the father’s fiancée contacting the mother about parenting matters[10] (she did not say what parenting matters she was addressing) without consultation with the child’s father, despite the father telling the mother that the father’s fiancée was communicating with the mother on the father’s behalf and with his knowledge and authority; and
b)the fiancée’s appellation of the child’s “second mum”, a term about which use the mother said she (the mother) was not consulted.
[10] Paragraph 50 of the mother’s affidavit made 29 January 2021.
The mother stated that the father’s fiancée interfered[11] with the co-parenting by the mother and father. The illustration she gave was trivial. It related to the purchase of an iPad.
[11] Paragraph 56 of the mother’s affidavit made 29 January 2021.
The mother may well take the view that she is unable to effectively co-parent with the father. However, I did not attribute the significance the mother did to the father’s alleged inflexibility.
The mother relied on a series of text messages passing between her and the father during 2017. I did not regard the tenor of those messages from the father as being hostile as the mother asserted.
witness veracity
On behalf of the respondent, Mr Turnbull SC made a forceful submission to the effect that the applicant should not be accepted at her word when she gave evidence that she would facilitate a meaningful relationship between the respondent and the child if a relocation order was made. In essence, Mr Turnbull SC submitted that the applicant had been shown to have given false evidence on an array of matters. In the passages below I have analysed the applicant’s evidence on those matters. In response, Ms Mooney SC took issue with the characterisation of the applicant’s evidence as being false and Ms Mooney argued that the father, by his conduct, displayed sufficient trust and confidence in the mother’s care of the child that he agreed for the child to live with the mother. Ms Mooney submitted that the criticisms of the mother’s veracity were unmeritorious at best or at worst a distraction from a consideration of the best interests of the child.
So far as the respondent was concerned, Ms Mooney did not suggest that he was an unreliable witness or that he had given evidence that was untrue. Instead, Ms Mooney highlighted how the respondent had not been particularly involved in the child’s life and (although these were not her words) it ill-behoved the respondent to impede the applicant’s and the child’s relocation having regard to the manner in which the respondent had been involved in the child’s life to date.
Reasons advanced for the relocation
It has long been the law in this country that a person enjoys personal freedom to move within the Commonwealth of Australia.[12] A person intending to move (or relocate) is not required to demonstrate the existence of compelling reasons or even compelling circumstances before relocating. So much has been held by the High Court in AMS v AIF and U v U.
[12]AMS v AIF (1999) 199 CLR 160.
I proceed on the basis that an order should be made in respect of the relocation of a child if it is in the best interests of the child that a relocation order be made. Part VII subdivision BA of the Family Law Act is thereby engaged. It must not be overlooked that key statutory provisions are set out in s 60B(1), s 60B(2) and s 60CC(2)(a). Relevantly, s 60B(1)(a) provides as follows –
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Section 60B(2)(a) provides as follows –
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
Section 60CC(2)(a) provides as follows –
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents.
The phrase “meaningful relationship” is not defined in the Family Law Act. In Richter & Richter I endeavoured to attribute an interpretation to the phrase and I adhere to that construction.
A substantial effort was devoted by both counsel to establishing whether, in consequence of the making of the relocation order sought by the mother, the object of Part VII Division 1 of the Family Law Act would be promoted in the child having the benefit of a meaningful relationship with both parents. On behalf of the respondent, Mr Turnbull SC contended that the practical consequence of the making of the relocation order sought by the mother was to deny to the child a meaningful relationship with the father. In essence, Mr Turnbull argued that face-to-face time between the father and the child would substantially diminish. Mr Turnbull argued that incrementally, over time, Mr G’s role would be enhanced in relation to day-to-day issues apropos the child. The family consultant did not accept that Mr G would ultimately replace the father’s role in the child’s life. While I accept that the respondent will always remain the child’s father, it was readily apparent to me that on day-to-day issues as the child matures, from seemingly unimportant issues such as homework to more important issues, the mother’s new partner Mr G may well be the primary adult male influence for the child.
As against that, on behalf of the applicant Ms Mooney SC argued that no compromise would be occasioned to the meaningful relationship that presently exists between the father and the child if the mother relocated with the child in the manner sought. Ms Mooney argued that the father’s time spent with the child had historically amounted to no more than 52 nights a year and that the proposed time urged by the mother amounted to no decrease in the father’s time with the child. Ms Mooney SC argued that the close and loving relationship presently enjoyed by the father with the child would survive the consequences of the child living in the state to which the mother wishes to relocate even with the father’s continued residence in Tasmania.
It seemed to me that the proposed relocation would result in the father having less face-to-face interaction with his daughter. The child may interact with her father electronically. The frequency of any such interaction electronically was a matter of speculation. The family consultant may be correct in that the father will never cease to be recognised and known as the child’s father in the eyes of the child. However, the relocation proposed by the mother will, in my view, orchestrate a diminution in face-to-face interaction between the father and the child with the consequence that a lessening in the meaningful relationship between the father and the daughter is likely.
Understanding why the relocation is proposed
Whether or not to make the relocation order sought will be determined largely – but not exclusively – by a consideration of whether such an order is in the best interests of the child. Pursuant to s 60CA of the Family Law Act the best interests consideration for the child is regarded as the paramount consideration. The mother advanced the contention that the five reasons given by her as representing her reasons for seeking the relocation order represented the best interests of the child. Accordingly, it became necessary to examine each reason she gave, at least in overview, and not in any particular order.
Mr G’s employment interstate
The mother postulated a reason for her seeking relocation that Mr G had better job prospects in the state to which the mother and the child wished to move than existed in the state they wished to leave. Mr G gave evidence that he had unsuccessfully sought employment in the state he wishes to leave. During his cross-examination he said his current employer’s contractual relationship with a state instrumentality was in jeopardy leading to conjecture in the workforce to which he belonged about job stability generally, including his own. He was pressed on his capacity to give evidence about the contractual machinations between his employer and the state instrumentality with which his employer enjoyed some imprecisely defined contractual relationship. Mr G’s responses to those questions revealed to me that he had no real understanding about the subtleties of the contractual arrangements between his employer and the state instrumentality with which his employer allegedly contracted. No head contract was put in evidence, no sub-contract was put in evidence nor was Mr G’s own employment contract put in evidence. No notice of default (if there be one) was adduced in evidence. In short, I regarded Mr G’s evidence about the tenuous contractual position between his employer and the other contracting party to have been speculative. I regarded his evidence on that issue as having next to no probative value.
Mr G gave evidence he was considering job opportunities in the state to which he wishes to relocate. Understandably, unless and until an order for relocation is made he is reluctant to formalise any interstate employment arrangements.
Her own work
The mother’s location of her place of work is fluid and she said she can operate remotely from almost anywhere in the Commonwealth.
It seemed to me that the reason given for wanting to relocate, namely, the likely end of Mr G’s current work was unsubstantiated. The applicant is able to work remotely.
Proximity to her father
Next, it was said that the applicant wishes to relocate to be closer to her father who the applicant said was in advanced years and in poor health. Prior to the last day of submissions, no evidence of a medical nature had been adduced about the applicant’s father’s health beyond the answers given by her to questions put in cross-examination. In final addresses I raised with Ms Mooney that reports of treating doctors or specialists were not in evidence and that the absence of medical evidence about the maternal grandfather’s true medical condition bore upon my acceptance or rejection of the applicant’s evidence that her desire to relocate was legitimately premised on the poor health of the applicant’s father. Ms Mooney’s application to reopen[13] was not opposed, so I allowed the applicant to reopen with a view to tendering a bundle of documents that included a report from the maternal grandfather’s treating medical practitioner. The applicant gave evidence that the applicant’s father does not wish to travel to the state where the applicant and child now live. The applicant demonstrated a deep concern for her father, especially in his current circumstances. I accept without reservation her care and concern for her father. Whether or not the applicant’s father is physically able to travel seemed to me to be largely beside the point as he has indicated, through the applicant, that he will not travel to the state where the applicant and child now live.
[13] In support, Ms Mooney relied on the decision of Cronin J in Naczek v Dowler (No 4) [2008] FamCA 653, the Full Court’s decision in KMB & PRL [2005] FamCA 1202 and my own decision in Stone & Clifford [2016] FCCA 2045.
The applicant gave evidence that her father (that is to say, the maternal grandfather) has had some involvement in the child’s life. However, very little evidence emerged about that matter.
Mr Turnbull SC extracted from the applicant in cross-examination that the father’s place of residence is three hours’ drive from the place to which the applicant wishes to relocate. It seemed to me that even if a relocation order in accordance with the applicant’s wishes were made, the frequency of the child visiting her maternal grandfather at his residence three hours from the applicant’s intended home in her place of relocation could not be assured.
It seemed to me that the applicant’s wish to be nearer her ailing father as a reason for seeking the relocation order was tangential to the child’s best interests, to say the least.
Proximity to her other family members
The applicant advanced as a reason for seeking relocation that the child will be proximately closer to the child’s other relatives, especially those nearer her age. The evidence on this issue was imprecise. One of the applicant’s sisters is a medical professional travelling to Queensland for work, according to the mother, and the other continues to reside in the state in which the child presently lives. Very little evidence was given about the extent of any proposed interaction with extended family members if the relocation were ordered. That was curious as the applicant placed considerable store in the importance to the child in having the benefit of the presence of her extended family in consequence of the relocation.
Distance
The applicant further advanced as a reason for her desire to relocate her need for what she called “distance” between herself and the respondent. Her argument was not easy to follow. On the one hand she complained that the respondent had participated in only 52 nights per year in time with the child yet on the other hand she proposed moving thousands of kilometres to her proposed relocation destination. The applicant cited difficulties in co-parenting as a reason for wanting to move three states away yet in her cross-examination she conceded to Mr Turnbull that her relationship with the respondent was tolerably polite and workmanlike insofar as the child was concerned. It was peculiar that she selected a relocation destination so far from her existing residence if she simply wanted physical distance from the respondent as that could be achieved elsewhere in the state where she presently lived. Her wish to relocate to the place nominated by her revealed to my way of thinking a desire to be more proximate to her father. Her stated reason that she wanted distance from the respondent by her relocation to the place selected by her was not valid, in my view. She could so easily have achieved “distance” by moving to another city in the state in which she now lives.
Living where she was educated
Finally, one reason assigned by the applicant as supporting her desire to relocate was her wish to be near the place where she attended university. To my mind, that was not a particularly child-focused reason for seeking a relocation order.
Witnesses who gave evidence
The applicant and her current partner gave viva voce evidence as did the respondent and his current partner. A family consultant also gave viva voce evidence. Each was cross-examined.
Other persons feature in this litigation yet they did not give evidence. Among those who did not give evidence were the applicant’s sisters, especially Ms B with whom the applicant and respondent lived upon their arrival in Tasmania. By reason of Ms B not giving evidence, it was not possible to verify –
a)the statements made by the applicant in her documentation submitted to immigration authorities about the highly positive nature of the respondent’s character; and
b)the evidence given by the applicant that the respondent was involved to a very minor extent during the birth of the parties’ daughter.
In making those observations I make no criticism of Ms B or the applicant for failing to produce Ms B for cross-examination. However, by reason of the absence of the evidence of Ms B I was denied the opportunity of objectively verifying certain statements made by the applicant. Mr Turnbull SC relied on Jones v Dunkel[14] to contend that the applicant did not call Ms B because her evidence was not supportive of the applicant’s case. In my view it is not necessary to so find as I base my decision to refuse the mother’s application to relocate mainly on the child’s expressed wish not to leave Tasmania.
[14] (1959) 101 CLR 298.
Some observations about the applicant
Not all issues in this case were diametrically opposed as between the applicant and the respondent. However, on certain issues the version of events as given by the applicant was different to the version of events as given by the respondent. Some of those issues were peripheral or inconsequential to the matters that fell for my determination under, for example, s 60CC(3) of the Family Law Act. Where it was necessary to assess evidence that conflicted from the applicant and from the respondent, I was required to prefer one version over the other and to say why I had so decided.
In the overall, on several issues the applicant made appropriate concessions during her cross-examination. For example, she recognised that the proposed relocation was likely to orchestrate a loss to her daughter in the time to be spent with the respondent, his fiancée and his fiancée’s son.[15] That was not an especially significant concession, however. Self-evidently, if the child relocated to Queensland those she left in Tasmania would suffer a diminution in the time the child could spend with those remaining in Tasmania. I did not attribute any particular significance to the mother’s concession in that regard.
[15] T55.
Yet in other areas that were the subject of cross-examination of the mother by Mr Turnbull SC, I took the view that the mother was argumentative and combative, yielding only to Mr Turnbull’s proposition when she was left with no other option. The duration of this trial more than doubled[16] in large measure because the mother, in cross-examination, initially took issue with matters she later conceded. For example, a substantial amount of time was spent during her cross-examination on whether, in fact, the father had behaved in an uncooperative manner while parenting the child soon after the parties’ separation. The mother was emphatic that the father had behaved in a manner that added to her burden in parenting the child. Perfectly properly, Mr Turnbull took the mother sentence by sentence to passages of her affidavit, ultimately extracting on several occasions concessions that the matters to which the mother deposed in her affidavit revealed a cooperative approach to parenting by the father, as opposed to the opposite complexion the mother endeavoured to convey.
[16] The estimated duration of the entire trial was two days. It ran for almost six full days.
The mother was at pains to try to persuade me that training as an allied health professional rendered her construction of her parenting as being superior to that of the father. At one stage the mother gave evidence that an allied health professional’s qualifications equate to those of a psychologist, a proposition I found extraordinary and contrary to the instructions provided by such authorities as Makita (Australia) Pty Ltd v Sprowles,[17] Dasreef Pty Ltd v Hawchar[18] and Honeysett v The Queen.[19]
[17] (2001) 52 NSWLR 705.
[18] (2011) 243 CLR 588.
[19] (2014) 253 CLR 122.
In making those observations I recognise that the mother encountered a difficult pregnancy with her first child and that the mother encountered other issues during the child’s early years. No medical evidence was adduced in this case by which it was possible to determine with any accuracy whether the mother in fact suffered post-natal depression, as she asserted.
The mother’s recall of events was generally poor. Her style of giving evidence highlighted the need for me to carefully assess the accuracy of the information she imparted in the witness box. For example, on several occasions she gave her evidence with a degree of firmness revealing to me that she had a precise recollection of the event being enquired after. When pressed, on several occasions she admitted she did not recall the event or she was unable to verify whether the father’s contrary version of events was true in the manner he said it was.
Then there was her evidence about the immigration documentation.
The immigration documents
During Mr Turnbull’s cross-examination of the mother he challenged her about the contents of several statements and statutory declarations provided to the Department of Immigration and Citizenship. Those statements and declarations had been made by various people in support of the respondent’s application for a visa. In broad overview, the contents of each of the documents provided to the immigration authorities contained statements very favourable of the deep affection for and commitment between the applicant and the respondent. All but one was written in October 2010. Ms B provided her statutory declaration in early November 2011.
In her viva voce evidence the applicant was adamant that her relationship with the respondent had fractured very significantly by the date on which their daughter was born, in March of 2010. The sentiments expressed in each document submitted to the immigration authorities were extremely positive in relation to the respondent. For the most part, in her viva voce evidence the applicant was most critical of the respondent. An inconsistency emerged especially in the applicant’s viva voce evidence when contrasted with the evidence on the same issue in her document entitled “partner statement for Department of Immigration and Citizenship.”[20]
[20] That document became exhibit R1.
At the request of Ms Mooney SC, the applicant’s evidence during the trial of this proceeding was impressed with a certificate given under s 128 of the Evidence Act in relation to her commentary on the contents of the information in exhibit R1. The applicant perceived she may incriminate herself by giving viva voce evidence that was contradictory to the information in her partner statement. I made the s 128 order, there being no opposition by Mr Turnbull. The applicant offered a variety of explanations for the variations between her viva voce evidence and the information she set out in the document that became exhibit R1. She said the following –
I’m – I’m going to say that when I wrote this statement – I am terribly embarrassed, but I – I embellished the statement. And I don’t – I’m terribly embarrassed, and I – I understand the gravity of that. But that’s – that’s – that – that’s what it is. That’s what it is.
It became necessary for me to consider whether her reference to the contents of the statement (exhibit R1) being an embellishment was correct. On one construction of events, the document was written over 10 years ago when events were fresh in her mind with the consequence that the events, as recorded, were more likely accurate being temporally proximate to the date on which the events occurred. On the other hand, it was equally possible that the mother who then enjoyed a very favourable relationship with the father, was willing to provide such information as was necessary to assist in securing for the father the necessary immigration status that he was seeking.
On the balance of probabilities, it seemed to me that the information in the immigration documentation[21] was more likely to have been correct when made than was it an embellishment. I do not accept the applicant’s characterisation of the information in her statement to the immigration authorities was an embellishment. I take the view that the information was, on the balance of probabilities, correct and accurate when made. I also take the view that the applicant’s evidence when given in the witness box that tended to put forward a contrary factual scenario was untrue and I reject it. Further, other statutory declarants whose statements were put into evidence[22] spoke in largely similar complimentary terms about the respondent. Those other makers of statements gave evidence in their statements that was largely consistent with the version the applicant gave about the respondent. None gave evidence in support of the applicant. None was cross-examined. I accept the consistency of the statements in each statement. When the applicant stated that she regretted embellishing her own statement, I do not accept that her evidence was an embellishment. To the contrary. In fact I take the view that her assertion that her immigration statement was an embellishment was itself false.
[21] Exhibits R1 to R6.
[22] Exhibits R1 to R6.
The applicant’s happiness
A matter seriously pressed by the applicant was the contention that the mother will remain unhappy unless her proposed relocation order is made with the consequence that the child in her care will be adversely affected by the mother’s unhappiness. Ms Mooney SC took me to certain authorities that she said addressed that contention. They included Beazley & Andreopolis,[23] Mitty & Mitty,[24] Wilkins & Coates[25] and Spurling & Spurling (No 2).[26] I accept that, for example, on the facts of a particular case a mother may become anxious and such anxiety may well have a direct impact upon that mother’s capacity to deliver her best parenting for her children. Whether that extends to a general malaise suffered by a mother or perhaps to a depressed state would need to be the subject of medical or psychological evidence. Suffice it to say that it is no great leap in logic to recognise that a mother’s behavioural disposition, whether it be of happiness, unhappiness, anxiety or depression is likely to impact upon the mother in her parenting towards her child.
[23] [2009] FamCA 567.
[24] [2010] FamCA 718.
[25] [2018] FamCA 1098.
[26] [2018] FamCA 1130.
The mother’s contention in this case that she will be unhappy unless the relocation order she seeks is made is a factor that I have considered and weighed.
Before addressing the considerations that inform the best interests of the child, it is useful to record the observations of Kirby ACJ in Galea v Galea[27] in relation to the benefits a trial judge enjoys in assessing the evidence each witness gives and its bearing upon the version of contested evidence that I should accept. There Kirby ACJ held that the advantages enjoyed by the trial judge were as follows–
a)hearing the evidence in its entirety;
b)hearing and seeing all evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
[27] (1990) 19 NSWLR 263.
Here, I regarded the evidence of Mr G and Ms F as being that of honest witnesses even though I take the view that Mr G’s evidence about job issues was speculative. Likewise, the father’s evidence was truthful. My assessment of what he said in relation to the specific issues that the subsections of s 60CC(3) raise is recorded below.
So far as the applicant was concerned, Mr Turnbull SC argued that her evidence on key issues was so defective that I should treat it as being wrong and in some instances deliberately so. In my view the applicant focused very sharply on her evidence being accepted for the specific purpose of successfully achieving a relocation order. I do not regard the applicant as dishonest, a liar or even a person who deliberately distorted relevant facts. However, in my view her wish to leave Tasmania, to relocate, to start a new life with her new partner and new child explained why –
a)she first gave emphatic evidence that she could not cooperatively co-parent with the respondent then later conceded that her relationship with the respondent was tolerably polite and child-focused;
b)she said she needed “distance” between her and the respondent when in reality any such distance could be achieved without relocating interstate; and
c)she stated as a reason for relocating her wish to be nearer her ailing father when in reality the applicant’s father’s residence in Town D was unlikely to enhance the child’s interaction with her maternal grandfather.
In other words, I accept that the applicant was not a liar nor did she distort the truth. However, I take the view that her reason for wishing to relocate was not child-focused and instead was underpinned by her own desire to start afresh interstate. Of course, in this relocation application the matters I must consider have their foundation in s 60CC and in s 65DAA of the Family Law Act.
Meaningful relationship
Section 60CC(2) ranks the benefit to the child in having a meaningful relationship with both of the child’s parents as one of two prescribed “primary considerations”. The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Taking first s 60CC(2)(a), it is a fair distillation of the evidence that the child currently enjoys a meaningful relationship with both parents while the child resides where she currently does. The family consultant hypothesised that such a relationship with both parents is likely to continue even if the child relocates with the mother. To my mind, several things must be said of the family consultant’s evidence on this issue. First, on her own admission the family consultant did not prepare a comprehensive family report on the question of relocation and that her child inclusive memorandum was necessarily more brief than would have been the case if she had prepared a more comprehensive family report. Second, any view about the likelihood of the child having a meaningful relationship with both parents into the future presupposes a high degree of cooperation between the parents as well as active promotion of that notion by both parents as well as the new partners of each. I accept that while both parents reside in the same state as they presently do each promotes a meaningful relationship for the child with the other parent. Equally, while the two parents reside in the same state as they currently do, a good deal of merit exists in Ms Mooney SC’s submission that the respondent has sufficient faith and trust in the applicant’s promotion of a meaningful relationship that the child resides with the applicant and spends time with the respondent.
I also accept that the child will regard the respondent as her father. Similarly, historically when the child has wanted to inform the father about the child achieving some success in the child’s life the mother has not impeded the child in doing so. Of course, that is set against a backdrop where the applicant, the child and the respondent live in the same state reasonably proximate to one another. The issue weighing on my mind is whether, by the applicant’s statement that she seeks distance from the respondent, she means physical but also emotional and interactive distance from him.
In my view, a substantial risk exists that the applicant will not promote a meaningful relationship between the child and the father if the child relocates interstate in accordance with the applicant’s wishes. Based on the answers obtained during her cross-examination, I take the view that Mr Turnbull’s point about the applicant having little favourable to say about the respondent was well made. I also take the view that she is likely to maintain that view if she lived thousands of kilometres from the respondent with the consequence that she is unlikely to actively promote a meaningful relationship between the child and the father if the child relocates interstate in accordance with the mother’s wishes. The mother gave evidence that she will in fact promote a meaningful relationship. However, in view of the information about the immigration documentation the applicant gave in response to her cross-examination, I feel little confidence that I can accept her statement that she will actively promote a meaningful relationship between the child and the respondent. In my view a risk exists that she will not. It is significant that Mr G and the respondent have spent next to no time together so the interaction between the two is untested.
It was next necessary to consider the need to protect the child from physical or psychological harm upon being subjected to or exposed to abuse, neglect or family violence for the purposes of s 60CC(2)(b). Under the rubric of this subsection the applicant introduced her contentions in relation to family violence. Section 60CC(2)(b) is not confined to evidence in relation to a family violence order.
The applicant gave evidence that she is well versed in matters of family violence and that she has a well developed understanding about its terms. In answer to questions put to her during her cross-examination by Mr Turnbull, the applicant –
a)admitted to certain events about which she gave direct evidence constituting family violence yet she did not complete court documentation indicating the occurrence of that particular event involving family violence;
b)gave that evidence about more than one such event;
c)said she did not go to police over those events; and
d)when pressed, the applicant spoke of family violence in the context of New South Wales legislation rather than in the context of the Family Law Act.
Having regard to her stated knowledge of the field, her evidence set out in the immediately preceding paragraph caused me to examine her evidence on the subject of family violence very carefully. It concerned me that the applicant purported to give a detailed recital of several incidents of family violence yet she took no step to indicate the occurrence of those incidents in court documentation and she took no steps to complain about the occurrence of those events to police. That highlighted my concern that the applicant gave evidence before me that was highly critical of the respondent when real doubts existed about the occurrence of the relevant events at all. If I were concerned about the fact that the events she described as family violence occurred at all, it was open to me to conclude that the applicant was generally ill-disposed towards the respondent and that I should look for corroborating evidence before accepting the applicant’s evidence as constituting family violence. The respondent denied the matters put against him by the applicant. Specifically, the applicant said the family violence took the form of punching a wall, threatening comments including discussing setting a car alight and her house burning down, abusive behaviour, financial control and engaging in coercive control, including an incident at her workplace involving a person whose name was Mr O. Mr Turnbull pointed out that Mr O was not called to give evidence and no report was put in evidence in relation to the event concerning him. Mr Turnbull submitted that I should find as a matter of fact on the balance of probabilities that the applicant’s version of events should not be accepted in relation to the workplace event that was witnessed by Mr O and that I should conclude that the event did not happen.
In debate I raised with Mr Turnbull statements at appellate level in this court to the effect that trial judges should be circumspect in making adverse credit findings in parenting applications because the parents often must continue parenting jointly.
Ms Mooney SC on behalf of the mother advocated the applicant’s family violence contentions consisted of “ongoing persistent low-level hum of denigration, lack of support, nasty name calling, mean behaviour, punctuated occasionally by jealous outbursts, on one occasion a physical outburst of hitting a wall, and generally a lack of caring.”[28]
[28] T460 L42 et seq.
The respondent denied the occurrence of and his participation in any family violence.
Ms Mooney SC made a submission, relying on Amador v Amador,[29] to the effect that I am entitled to accept the applicant’s evidence about family violence, even in circumstances where a witness such as Mr O did not give evidence, and that I was entitled to conclude that the applicant’s evidence is acceptable despite it not being supported by the evidence of that other witness. That proposition may be correct if the evidence had not been directly denied by the respondent. Here, he denied the many assertions of family violence alleged. The applicant maintained that they occurred. A direct evidentiary contest thereby arose. The applicant asserted and the respondent denied. It fell to her to provide some evidentiary support for her assertion. The most obvious source of such evidentiary support was a person who witnessed the controverted event. In the case of the incident at the applicant’s workplace the witness Mr O was the obvious corroborator. The applicant failed to adduce his evidence. She did not account for that failure. Nor did the applicant tender any documentary evidence that may have supported her version of the event such as a complaint or some other workplace document. This was set against a backdrop in which the respondent denied the occurrence of the event. He was not required to prove that the event did not occur. To require that was to reverse the evidentiary burden. Accordingly, I have proceeded on the basis that the point is to be resolved by application of the principles set out by Sir Thomas Bingham in his article The Judge as Juror: The Judicial Determination of Factual Issues and by Sir Richard Eggleston in his book Evidence, Proof and Probability. Sir Thomas Bingham made the following observation[30] –
[29] (2009) 43 Fam LR 268.
[30] Sir Thomas Bingham, The Judge as Juror: the Judicial Determination of Factual Issues (1985) 38(1) Current Legal Problems 1.
The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case –
(1)the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence;
(3)consistency with what the witness has said or deposed on other occasions;
(4)the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
Before deciding on the relocation application, I am required to assess the impact of considerations set out in s 65DAA.
Substantial time or serious and significant time
Dessau J (as her Excellency then was) in M v S,[60] judgment in which was handed down on 21 December 2006 traced through the provisions of s 65DAA of the Family Law Act in detail. It is utile to paraphrase her Honour’s approach in the following way –
a)in deciding a particular parenting order the best interests of the child is the paramount consideration: s 60CA;
b)a presumption exists that it is in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA;
c)as the concept of equal shared parental responsibility does not relate to the time the child spends with each parent, the court is required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA(1)(a)) and whether it is reasonably practicable (s 65DAA(1)) and then to consider an order for equal time (s 65DAA(1)(c));
d)if the court does not make an order for equal time the court must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA(2)(c)) and whether it is reasonably practicable (s 65DAA(2)(d)) and then to consider an order for substantial and significant time (s 65DAA(2)(e)).
e)the concept of “substantial and significant time” is defined in s 65DAA(3);
f)when considering propositions of “reasonable practicability”, s 65DAA(5) sets out the matters the court must consider.
[60] (2006) 37 Fam LR 32.
Given that a court must engage in a consideration of s 65DAA(1), the observations of the High Court in MRR v GR[61] about the imperative nature of its terms must be addressed. The relevant passage is as follows –
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.
[61] (2010) 240 CLR 461.
Elsewhere, the plurality in MRR v GR held as follows –
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The High Court held that the Full Court erred by upholding the decision of a magistrate and by dismissing the appeal from the magistrate. At paragraph [19] of its reasons in MRR v GR the plurality held as follows –
The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.
In Blanding v Blanding[62] the Full Court rejected the criticism levelled at the trial judge for allegedly failing to consider whether the children spending substantial and significant time with the parties was in their best interests and reasonably practicable. The Full Court held that the trial judge made no error in discussing the proposals propounded by the parties. On 31 July 2019 the Full Court decided Babcock & Waddell,[63] a relocation case. There the Full Court was influenced by the decision of the UK High Court in Re TC & JC (Children Relocation)[64] where the High Court held –
(a)is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?;
(b)is the application realistically founded on practical proposals both well researched and investigated?;
(c)what would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?;
(d)is the other parent or person’s opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?;
(e)what would be the extent of the detriment to the father and his future relationship with the child if the application were to be granted?; and
(f)to what extent would that detriment be offset by the extension of the child's relationships with the applicant’s family?
[62] (2016) 55 Fam LR 218.
[63] [2019] FamCAFC 129.
[64] [2013] EWHC 292.
The parties were largely in agreement in relation to spend time arrangements if the mother’s relocation application was refused save for spend time arrangements during the summer school holiday period where the mother sought a week on/week off arrangement and the father sought block time. In my view, the week on/week off arrangement propounded by the mother was preferred. I take the view that in the circumstances of this case the frequency of the time the child spends with the respondent is likely to promote the primary consideration set out in s 60CC(2)(a), namely, the child having a meaningful relationship with each of the child’s parents. Conversely, an order for block time reduces the frequency of regular interaction between the father and the child over time. On the version proposed by the applicant, the respondent will spend time with his daughter at regular, predictable intervals throughout the summer holiday period. To my mind, such frequency and regularity of the child’s time with the respondent promotes the child’s best interests. I make orders in accordance with the father’s proposed orders being agreed exhibit 4 in this proceeding, adopting the mother’s week on/week off proposal in terms of paragraph 5 of that document.
Upshot of relocation application
I take the view that the making of a relocation order as sought by the applicant is not in the child’s best interests. I say that because –
a)the child wants to remain in Tasmania;
b)I entertain real concerns that the applicant will be true to her assertion that she will facilitate a meaningful relationship between the child and the respondent if a relocation order is made;
c)in reality, upon a relocation order being made, the father will interact on a daily basis with the child electronically and he will have face-to-face contact with the child in block times;
d)the child’s primary adult male influence if a relocation order is made is, on the balance of probabilities, likely to be Mr G and not the respondent, at least for face-to-face interaction;
e)the child, while mature for her age, has expressed the wish to remain near her circle of friends in Tasmania;
f)if required, the child could probably tolerate the move to the place of relocation so long as she has support from both parents but that is not her preferred position;
g)the reasons advanced by the applicant in support for the relocation application are not child-focused and are the wishes of the mother;
h)the family consultant stated that the child’s preferred position is to remain in Tasmania;
i)seeing the child outside of the block time proposed by the applicant involves travelling to Queensland with its attendant cost and inconvenience; and
j)the mother’s unhappiness has the prospects of translating to the child but the mother’s happiness is not determinative in ascertaining the child’s best interests.
The mother indicated that if her application is refused, she will abide by her proposal for time, formulated on the basis of the relocation being refused.
The orders I make reflect orders that are in the child’s best interests and they reflect time that is in accordance with s 65DAA of the Family Law Act.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 13 May 2021.
Associate:
Date: 13 May 2021
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