Pearson & Wall

Case [2022] FedCFamC1F 873

Federal Circuit and Family Court of Australia

(DIVISION 1)

Pearson & Wall [2022] FedCFamC1F 873

File number(s): ADC 1693 of 2016
Judgment of: BERMAN J
Date of judgment: 10 November 2022
Catchwords:

FAMILY LAW – CHILDREN – Relocation – With whom a child lives with and spends time with – Where final orders were made in 2019 – Where each party has one of the children in their primary care – Where the applicant travelled to New Zealand with one child for nine months without the consent of the respondent – Where the applicant seeks orders for her and the child to be permitted to relocate to New Zealand – Where in the alternative, the applicant seeks a reduction of the respondent’s time with the child – Where the respondent opposes the relocation application and seeks to increase her time with the child to equal time – Consideration of the sibling relationship –  Consideration of the children’s wishes – Meaningful relationship – best interests of the children – Applicant permitted to relocate with the child after a period of two years – Orders.

FAMILY LAW – CHILDREN – Parental Responsibility – Where final orders were made in 2019 that provided for the parties to have equal shared responsibility for both children – Where the applicant now seeks that the parties have sole parental responsibility for the child in their respective primary care – Where the respondent seeks that she have sole parental responsibility for the child in her primary care and equal shared parental responsibility for the parties’ younger child – Where orders are made for the parties to have equal shared parental responsibility with respect to education for the younger child

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

65DAA, 69ZN, 69ZQ, 69ZR, 69ZT
Cases cited:

AMS v AIF [1999] 199 CLR 160

Beckham v Desprez [2015] 55 Fam LR 310

Blanding v Blanding [2016] 55 Fam LR 218

Godfrey & Sanders [2007] 208 FLR 287

MRR v GR [2010] 240 CLR 461

Starr & Duggan [2009] FamCAFC 115

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance
Number of paragraphs: 206
Date of hearing: 8-10 August 2022
Place: Adelaide
Counsel for the Applicant: Mr McQuade
Solicitor for the Applicant: Stanley & Co Lawyers
Counsel for the Respondent: Ms Lee
Solicitor for the Respondent: Denise M Rieniets & Associates Pty Ltd

ORDERS

ADC 1693 of 2016

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

MS PEARSON

Applicant
AND:

MS WALL

Respondent

order made by:

BERMAN J

DATE OF ORDER:

10 November 2022

THE COURT ORDERS:

1.That orders made 8 July 2019 are discharged.

2.That save as to education undertaken in Australia, the applicant shall have sole parental responsibility for Y born … 2012 (“Y”).

3.That the applicant and the respondent shall share the parental responsibility in respect of the education for Y and specifically as to the issue of where and at which school Y will undertake Secondary Education.

4.That the respondent…

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Pearson & Wall [2022] FedCFamC1F 873
Case
[2022] FedCFamC1F 873
Decision Date

CaseChat Overview and Summary

The case of Pearson & Wall involves a dispute between the parties regarding the care and custody of their two children, X and Y. The applicant, who is X’s mother and Y’s father, seeks to relocate with Y to New Zealand, while the respondent, who is Y’s mother and X’s father, opposes the relocation and seeks to maintain the children's current living arrangements. The matter was heard in the Family Court of Australia, with both parties represented by counsel.

The court had to determine whether the applicant's proposal to relocate Y to New Zealand was in the best interests of the child. The primary consideration was whether such a relocation would allow Y to maintain a meaningful relationship with both parents and whether it would protect Y from any potential harm. The court also needed to assess the evidence presented by each party and determine the weight to be given to the various factors involved. The court considered the objects and principles of the Family Law Act 1975, particularly the paramountcy of the child’s best interests.

The court found that while the applicant intended to relocate Y to New Zealand, it was not in the child's best interests to do so at that time. The court emphasised that Y should maintain a meaningful relationship with both parents, particularly with the respondent and X. The court noted that Y was strongly bonded to the respondent and had a close emotional attachment to her and X. The court was concerned that a relocation would disrupt Y's current living arrangements and potentially harm her emotional wellbeing. The court also considered the practicalities of the proposed relocation, including the distance between the parties and the lack of reliable transport for the respondent. Ultimately, the court decided that Y should remain in Australia and that the applicant should have limited time with Y, with the possibility of this increasing in the future. The court ordered that Y would reside primarily with the respondent in Adelaide and that the applicant would have five nights a fortnight and half school holidays taken as a block. The court also ordered that Y would remain in her current school in 2023 but that the parties would review the situation in 2024 when the applicant planned to relocate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent seeks that Y’s passports remain surrendered to the Adelaide Registry of this Court and only available to the parties upon application.Background The applicant was born in New Zealand in 1976 and is now aged 46 years. The respondent was born in Australia in 1975 and is now aged 47 years. The applicant moved to Australia in 2002 and then to Adelaide in 2004. The parties commenced a relationship in 2004 and separated in March 2016. The children were both conceived with the assistance of separate and unrelated sperm donors. The biological fathers are known to the children. X’s biological father was a work colleague of the parties. Y’s biological father, Mr T (“Mr T”), was a school friend of the applicant and later moved back to New Zealand. Mr T gave evidence in support of the orders sought by the applicant. The applicant is not recorded as a parent on X’s birth certificate whereas the respondent is recorded as a parent on Y’s birth certificate. During the course of the relationship, each of the parties maintained employment. The applicant is an educator and also runs her own business. The respondent is employed as a public servant. The applicant is also undertaking further studies over a period of eight to eighteen months. Her financial support consists of a modest income from her business, a Centrelink benefit and some assistance both financial and physical from her parents. On 25 March 2020, the applicant and Y travelled to New Zealand. The parties remain in dispute as to the intention of the applicant in travelling to New Zealand with Y. The respondent contends that the applicant intended to take advantage of the travel restrictions arising out of the Covid-19 pandemic and that the applicant knew that once she was in New Zealand, she would not easily be able to return Y to Australia. The applicant denies that she acted with malice but concedes that she did not inform the respondent of her departure. Rather, she asserts that her trip to New Zealand was intended to be of short duration but the pandemic related travel restrictions prevented her from returning to Adelaide until 22 December 2020. Whilst in New Zealand, the applicant and Y spent time with Mr T and the applicant’s extended family. The applicant also formed a romantic relationship with Ms U (“Ms U”) who resides in Auckland. The applicant and Ms U were school friends and re-established their relationship in December 2020 whilst the applicant was in New Zealand. Whilst in New Zealand, the applicant re-commenced proceedings on 16 October 2020. The Initiating Application did not set out in detail the final orders sought. Instead, an order was sought that leave be granted for the applicant to particularise the final orders pending the release of a Family Assessment Report. The applicant sought an interim order that notwithstanding the 2019 final Orders, upon her return to Adelaide she intended to enrol Y at P School rather than the B School. It appears that the enrolment of Y was without any notice having been given to the respondent.

Evidence

Evidence Before The Court

Each of the parties were represented by counsel who provided a detailed case outline document.Treatment of evidence The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”). In determining and giving effect to the principles as set out therein, the parties were advised of the general duties and powers as set out in s 69ZQ of the Act and the ability that the Court has to make determinations, findings and an order at any stage of the proceedings if it will assist to better manage the trial, pursuant to s 69ZR of the Act. Both counsel considered the treatment of any objections to evidence and in particular, whether the Court should dispense with the application of s 69ZT of the Act. The position of counsel was that the Court should not apply the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) as are specifically excluded by s 69ZT(1). The evidence that may be received which in the ordinary course would otherwise be inadmissible would be subject to a consideration of the weight that should be given rather than its exclusion (s 69ZT(3)). Notwithstanding the provisions of s 69ZT of the Act, I am entitled to strike out evidence if I consider it to be scandalous, irrelevant or unnecessary.Issues in dispute Neither party alleges family violence or abuse, alcohol or substance use, but the applicant does contend that X was physically aggressive to Y, which has resulted in her being frightened of him. The more significant contention is that the respondent does not consider that the applicant’s proposal to relocate Y to live with her in New Zealand is genuine, but rather that it is motivated by a desire to limit or possibly sever the relationship between Y and the respondent. The consequence for Y, as asserted by the respondent, is that she is at risk of emotional abuse in circumstances where Y has a close emotional attachment to the respondent and X.Principles relevant to parenting orders Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The test of what is in the child’s best interest is to be considered by the application of the objects and principles of Pt VII pursuant to s 60B of the Act. I bring to account the primary and additional considerations of matters as set out in s 60CC(2) and s 60CC(3) of the Act. There are no allegations that the children are at risk from the behaviour of either party. I propose to adopt the following approach:-(a)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(b)To have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(c)To have regard to the provisions of s 60CC of the Act in order to determine, in each case, what is in the child’s best interests;(d)To have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;(e)To have regard to the additional considers under s 60CC(3) of the Act; and(f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment.

Decision

Reasons for decision

In those circumstances, and in the absence of an order for equal shared parental responsibility, I am not obliged to consider whether there should be equal time or in the alternative significant and substantial time other than if such an outcome is to be considered in the best interests of the child.Conclusion There is no uncertainty as to the future care arrangements for X. The respondent should retain sole parental responsibility and there should be no order that requires X to spend time with the applicant other than if he so wishes in which case, the respondent will be obliged to facilitate any such request. The position is more complicated in respect of Y. It is important that orders are made which reflect the intention of each of the parties that Y should maintain a meaningful relationship with both parties but in particular, the respondent. That is important at Y’s current age however, there will be a point reached in the next few years when it is reasonable to find on the evidence, that the relationship Y has with the respondent will be sufficiently embedded such that a consideration of a relocation to New Zealand, can be considered. I am not satisfied that there is evidence that would support a finding that equal time would be in Y’s best interests. It is likely that the parties will be separated by significant distance and given the financial circumstances of each of the parties and the lack of reliable transport available to the respondent, equal time is not likely to be practicable. In any event, Ms O recognised that Y was adversely affected by the ongoing conflict between the parties and it is reasonable to find that an order for equal time would only exacerbate the inability of the parties to reach consensus and agreement. Ms O considers that five nights a fortnight and half school holidays taken as a block would be in Y’s best interests and would reduce the likely conflict arising out of the multiple transitions of the child between the parties each fortnight. There is no issue as between the parties in respect of Y attending her current school in 2023. The issue arises in 2024 when the applicant seeks to relocate to New Zealand. I bring to account the personal circumstances of the applicant noting that she has family in New Zealand, that there is likely to be an enhanced employment opportunity available to her and the added advantage of the increasing involvement of Y’s biological father. The tension therefore, is as between the advantage to the applicant of relocation and therefore being able to better support Y, as against the potential for a diminution in the meaningful relationship and close emotional attachment that Y currently has to the respondent and X. I consider that in January 2024, Y will still be too young to easily deal with the upset and distress likely to be occasioned by a move to New Zealand. I bring to account the concerns expressed by Ms O as to the child’s emotional wellbeing and am concerned that there should be more time available to Y and the respondent to cement their relationship before consideration should be given to a relocation to New Zealand.

Ratio Decidendi

Legal Principle Established

Whilst I accept that any significant separation from the respondent and X is likely to be upsetting to Y, Ms O was unable to assist in identifying the impact and the effect on Y of being separated from the respondent and X if relocation is permitted. Parenting considerationsMeaningful relationship I find that the evidence supports a finding that X has little or no relationship with the applicant. That is not to suggest that the applicant is unconcerned about X nor that she does not want a relationship with him but it recognises that no evidence has been presented of any relationship between the applicant and X for a number of years. I do not find that the respondent is responsible for X’s decision not to engage with the applicant but rather, that if the current circumstances are capable of explanation, it is more likely that X believes that the applicant planned to remain in New Zealand with Y by manipulating the travel restrictions imposed by the Covid-19 lockdown. There is not currently a meaningful relationship between X and the applicant. The same cannot be said in relation to Y and the respondent. The Family Consultant considers that Y is strongly bonded to the respondent and holds deep affection for her relationship with X. Whilst the respondent may consider that the applicant is acting with malice in pursuing orders that involve a relocation of Y to New Zealand, the objective evidence is that whilst in Australia, the applicant considers Y should spend significant and substantial time with the respondent and X and should relocation be permitted, the respondent seeks orders that would enable a meaningful relationship to be maintained. In Godfrey & Sanders [2007] 208 FLR 287, Kay J said:- 36.…. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship. Whilst there may be concerns as to the viability of the applicant’s proposal for the child’s return to Australia on a periodic basis, I am satisfied that the applicant is genuine in acknowledging that maintaining a meaningful relationship between Y and the respondent is in the child’s best interests. A consideration of the Family Assessment Report and the evidence given by Ms O confirms the strength of the relationship between Y and the respondent. To some degree, the current circumstances of Y’s primary residence now at J Town and the respondent living in Adelaide, is likely to be a testing time. The applicant seeks to be able to relocate with Y to New Zealand at the beginning of 2024, presumably to coincide with the start of the school year. Y will complete her year 6 education next year and if she remained in South Australia, she would start high school in 2024. She would be 12 years of age. In relation to Y, this is not a case where the parties disagree as to the benefit that would be enjoyed by Y by her retaining an ongoing relationship with the respondent and X. The issue is whether at age 12, the relationship that has developed with the respondent could be maintained as a relationship of substance if relocation was permitted.Children’s wishes