Pender and Read
[2017] FCCA 3168
•18 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENDER & READ | [2017] FCCA 3168 |
| Catchwords: FAMILY LAW – Parenting – Mother seeks to relocate to Town B with four year old child – father Aboriginal (omitted) man – mother Aboriginal (omitted) woman and Torres Strait Islander. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 61DA, 61F, 64, 65D, 65DAA, 94AAA(3) |
| Cases cited: Waterford & Waterford [2013] FamCA 33 Cowley & Mendoza [2010] FamCA 597 Taylor & Barker (2007) 37 Fam LR 461 |
| Applicant: | MR PENDER |
| Respondent: | MS READ |
| File Number: | MLC 2244 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 21 and 22 November 2017 |
| Date of Last Submission: | 22 November 2017 |
| Delivered at: | Town A |
| Delivered on: | 18 December 2017 |
REPRESENTATION
| The Applicant: | Self-Represented |
| Counsel for the Respondent: | Ms Hamilton |
| Solicitors for the Respondent: | Aboriginal Family Violence Prevention & Legal Service |
ORDERS
That the mother and father have equal shared parental responsibility for the child [X] (“the child”) born (omitted) 2013.
That the child live with the mother.
That the child be permitted to relocate to Town B, Queensland.
That the child spend time with the father as follows:
(a)From Boxing Day 2017 until 12 January 2018;
(b)For 10 nights in each of the Queensland school term holidays, commencing in 2018, at times to be agreed, but failing agreement being from the first Monday of the holidays until the second Thursday of the holidays;
(c)For half of the long summer school vacation at times to be agreed, but failing agreement being the first half of the vacation in 2018/2019 and each alternate year thereafter, and the second half of the vacation in 2019/2020 and each alternate year thereafter; and
(d)For the purpose of these orders school holidays are defined as commencing on the day after the end of school term and ending the day before the beginning of school term; and
(e)Any other times as agreed in writing between the parties.
That unless otherwise agreed in writing, for the purposes of the child spending time with the father pursuant to orders 4(a), 4(b) and 4(c), the mother shall deliver the child to the Town A police station at 12:00pm on the day the father’s time commences, and the mother shall collect the child from the Town A police station at 12:00pm on the day that the father’s time concludes.
That for the purposes of 4(b) and 4(c):
(a)The mother will pay for the cost of the child’s return flights from Town B to Melbourne and the cost of the child’s return flights/bus/train from Melbourne to Town A;
(b)The mother will arrange all of the child’s travel at least 14 days prior to the departure date, and provide a copy of the child’s itinerary to the father; and
That for the purposes of order 4(d):
(a)The father will pay for the cost of the child’s travel; and
(b)The father will arrange all of the child’s travel at least 14 days prior to the commencement of the father’s time, and provide a copy of the child’s itinerary to the mother.
The child will not travel as an unaccompanied minor, until such time as the airline carriers allow, and the parties agree that the child is mature enough to travel as such.
Until the child is able to travel unaccompanied pursuant to Order 8 herein, the mother will travel with the child at her own cost, unless otherwise agreed between the parties.
That the child shall communicate with the father by telephone or video-call between 5.30pm and 6.30pm each Sunday, Tuesday, and Thursday, with the father to initiate the call, and at other reasonable times as agreed.
That when the child is spending time with the father, the child shall communicate with the mother by telephone or video-call between 5.30pm and 6.30pm each Sunday, Tuesday, and Thursday with the mother to initiate the call, and at other reasonable times as agreed.
That the mother and father shall advise and keep the other advised of their residential address, email address, and mobile phone number at all times.
That the mother and father will immediately notify the other parent of any significant illness, hospitalisation, injury or emergency affecting the child whilst the child is in their care.
That each parent be hereby restrained from criticising, denigrating or belittling the other parent in the presence or hearing of the child and from exposing the child to family violence or permitting others to do so.
Notwithstanding any other order, in the event that either party wishes the child to participate in “sorry business” in their family that party shall notify the other party as soon as practicable and be at liberty to take the child for up to 7 days (including during school terms) at their expense.
IT IS NOTED that publication of this judgment under the pseudonym Pender & Read is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MILDURA |
MLC 2244 of 2016
| MR PENDER |
Applicant
And
| MS READ |
Respondent
REASONS FOR JUDGMENT
[X] is 4 years old. He was born on (omitted) 2013 (“[X]”). He is much loved by both his mother Ms Read, born (omitted) 1992, aged 25 and his father Mr Pender born (omitted) 1985, aged 32.
[X]’s parents separated in January 2016. Currently, they both live in Town A and [X] lives in a shared care arrangement pursuant to consent orders made on 22 March 2016.
The father has an older child [C] born (omitted) 2009. [C] came into his father’s full time care in April 2017.
The father has repartnered. His partner, Ms E (“Ms E”), moved in with him earlier this year. He says he was friends with Ms E before he met the mother. He says the both his sons are close with Ms E. Ms E was not a witness in the father’s case. She was in Court throughout the hearing. The mother says she and Ms E were best friends. She feels betrayed by Ms E and the father. It was clear during the mother’s oral evidence that she still feels very hurt.
The mother seeks to relocate to Town B with [X]. She proposes that [X] spend time with his father for 10 days during the term school holidays and for half of the summer school holidays. She proposes to pay for [X]’s flights to spend holiday time with his father. She also proposes that the father spend additional periods of time in Town B with [X], at the father’s expense, as agreed between the parties.
The mother’s extended family lives in Town B. The mother wants to move there with [X]. She is unhappy and feels isolated in Town A. The mother has engaged in counselling to assist her. She says the father has standing within the community whereas she does not. She feels she can be a better parent to [X] in Town B where she will be happier and will have family support. [X] will also be able to be immersed in his maternal family’s culture.
The father opposes the mother’s relocation. He says [X] is close to his older brother and will not be able to maintain that connection if he moves. He says the two brothers will never see each other as he has an agreement with [C]’s mother that [C] will spend the whole of the school holidays with his mother. There are no orders in place with respect to [C] and no proceedings are on foot.
The father’s case is somewhat inconsistent. In his affidavits, prepared with the assistance of lawyers, he refers to having cultural connections in Town A. However, at the hearing his position was that both he and the mother are separated from their cultures in Town A. Essentially, he says they are in the same position and should remain there where [X] is settled as it is the only town he has lived in.
The father does have extended family in Town C, which is considerably closer to Town A than Town B. The father has eight sisters and three brothers. His paternal grandfather lives on a station outside of Town C. His grandmother also lives in Town C. He does not refer to any close family connections who in Town A.
Ms D (“Ms D”) prepared two family reports in this matter. The first dated 6 July 2016 and the updated report dated 15 November 2017. The trial was initially due to be heard in the August 2016 circuit. The mother filed an amended response on 11 August 2016 seeking to relocate to Town B. Ms D does not make recommendations in favour or against the relocation in either her first report or the updated family report, rather she identifies as one of the relevant issues to be considered. She was cross-examined.
The case was originally listed for hearing in the August 2016 circuit. By consent, it was adjourned for final hearing in the November 2017 Town A Circuit. The father was legally represented until August 2017. He sought a further adjournment of the hearing. He had a letter from a local lawyer saying she would be able to represent him if the hearing was postponed to the February 2018 circuit. I refused the father’s application for adjournment. The final hearing has been listed for a year. The parents have had the benefit of two family reports. Most importantly of all, [X] starts school next year. It is in [X]’s best interest for the issue of relocation to be determined prior to the start of the school year.
The father did not file any material for hearing but had filed a trial affidavit for the August 2016 hearing as well as two previous affidavits. I allowed the father to rely on those affidavits and to give an update to his evidence orally. The father did not call any supporting witnesses.
The parties met when they were both working in (location omitted). The mother said she moved from Town B to (location omitted) to work for a year. She moved back to Town B for a few months before moving to Town A to continue her relationship with the father. She does not have any family in Victoria.
[X]’s birth was traumatic for both parents. The mother suffered from pre-eclampsia and had to undergo an emergency caesarean section. Although [X] has not suffered any long term effects from his birth, it was clear that that experience was still painful for both parties.
There is a dispute between the parents as to who was the primary carer for [X] before they separated. There is also a dispute between the parties as to whether or not the week about arrangement has been working for [X].
The father’s case
The father’s case is that it is in [X]’s best interests that [X] remain living in the shared care arrangement in Town A. In his November 2016 affidavit at [44] he says the mother has not had sole care of [X] for a long time and had not been able to cope with caring for [X] for long periods without his or his family’s help.
The father says that during his time with [X] each alternate week he ensures that they participate in various cultural and educational activities.
The father says he is able to offer [X] stability. He has lived in the same four bedroom house he has been renting for six years.
The father’s oldest son [C] came into his full time in care in March or April 2018 after [C] made disclosures about family violence, drug use, and strange men being at his mother’s house. Prior to this [C] spent alternate weekends with his father.
The father says the two brothers are extremely close and that [X] is like [C]’s shadow. They are best friends. [C] has another brother and sister. [C]’s mother lives in (town omitted) which is about an hour and 15 minutes drive away.
He wants [X] to attend School A in 2018, which the school his older brother attends.
In his November 2016 affidavit at [50]-[52] the father refers to being concerned about things members of the aboriginal community have told him about the mother’s activities. The mother complains about this. She says she feels she is being spied upon as the father tells her who in the community has seen her and who she has been seen with, including at times when [X] has not been in her care.
The father also refers to his qualifications as an (occupation omitted) and the post graduate certificate he obtained in (omitted). He refers to learning about (omitted) and then refers to the mother’s erratic behaviour during the relationship. He also refers to his own mental health issues, the help he has received and the difficulties he had dealing with the breakdown of the relationship.
The father says that he has shared in [X]’s care since his birth. He accepted that the mother was home full time whilst he was working for the first few months and that she breastfed [X] for the first 12 months. The father injured his knee at work and had a period of about 8 months off work. The mother’s counsel put to the father that the mother cared for both him and [X] during this time. He said he helped as best he could. When [X] was about 2 years old the father started employment in Robinsvale. He left home at 8.00am and came back at about 6.00pm. The father says he would take over and help with [X] when he was home from work. I accept that the father was proactive in assisting to care for [X] when they were in a relationship but given his injury and then work commitments, the mother would have spent more time caring for [X]. This does not detract from either’s role as a parent.
The mother’s case
The mother’s case is that she is isolated in Town A and that the father undermines her in the community.
The father denied the mother’s allegations that he undermined the mother in the community. He said he cared about her. He said Ms E was a mutual friend of theirs. He conceded that the mother was close to Ms E. He avoided answering the question that his relationship with Ms E contributed to the mother’s isolation.
The mother agreed that a member of the local dance group told her that she saw the father and Ms E together. The father suggested that this was not to create drama but simply in passing in conversation. The mother replied that due to her isolation people feel the need to tell her that they see the father and Ms E and how happy the two of them are. The mother said she has made some mistakes with friendships since “being stabbed in the back” by her best friend and does not have any stable grounds here.
The mother proposes that she live with her parents in Town B. Their house is a 10 minute drive from her sister’s house and is also close to School B which is where she proposes [X] attend school. His two cousins attend that school. The mother says she is very close with her sister who lives in Town B with her husband and two children.
The maternal grandparents live about 40 minutes away from Town B. Her paternal grandmother and 3 paternal aunts live in Town B along with their 9 children, the mother’s first cousins.
Throughout her affidavit the mother details the regular telephone contact she has with various family members.
The mother proposes to look for work in Town B in the same field she is currently in working in which is supporting women who have experienced family violence. She is considering studying an online Diploma in (omitted). Once they have settled in Town B, and [X] has settled into school, she says she plans to get back into the workforce as it is good for her mental health and she also wants [X] to see his parents working.
The mother has researched the costs of flights between Town B and Melbourne and the costs of flight and V-line train travel between Melbourne and Town A. She proposes that until [X] is old enough to travel on his own that she travel with him to facilitate [X]’s time with his father during school holidays. The mother says that she will be able to afford these costs even without working as she will not be paying rent or child care fees if she is permitted to move to Town B. She says she would not let [X] lose his connection with his father as she knows how important that is. She says knowing the set dates for the holidays she will be able to put money aside, as she will not need to pay rent or utilities and she will make setting aside money for travel to Town A her priority.
I accept the mother’s evidence that she feels that it is in [X]’s best interests, as well as her own, to move to Town B and have a stable home and education.
The mother has taken [X] to Queensland on one occasion since the Orders made 16 November 2016. Order 2 of the orders of consent made on that day by Judge Hartnett provides:
The child live with the Mother for one two week block of time every six weeks commencing Friday 10 February 2017 and every six weeks thereafter for the purpose of the Mother and child travelling to Queensland.
The father points to the fact that the mother did not exercise all the travel she could as an indication that she does not really need to see her family so often. The mother says she simply could not afford it together with her rent payments and other expenses. She moved from her one-bedroom apartment to a two-bedroom apartment, was paying significant rent, and has a car loan. There was also the issue of leave. She says she could not afford to take unpaid leave. I accept the mother’s evidence as to why she did not more frequently visit her family in Town B.
The mother says she commenced an on and off relationship with Mr S in early 2017, but says she was never in a stable relationship with him as she had made it clear that they had no long-term future. She acknowledged that the police had been called on two occasions. She said that she ended the relationship because she did not want to be a victim of violence and said that she does not want to be with anyone in this area. She said this is made her feel even more isolated and unsupported in Town A. She agreed that [X]’s teacher told her that he made a disclosure about witnessing a verbal altercation between her and Mr S. The mother says that she is no longer in any kind of relationship with Mr S. An intervention order was taken out by the police, at the mother’s request, on 30 October 2017.
The mother agreed when cross-examined by the father that she was in an unstable relationship when she met the father but says it was not violent. She says she moved from Town B to take up a job for a year and she fell in love with the father.
The mother says it costs her $125 for each week she sends [X] to kinder and believes it costs $75 a week for the three days during the week the father sends him. The arrangement was that each parent pay for kinder during the periods [X] was in their respective care. The mother understands that the father owes about $900 to the kinder centre.
She says the father insisted that the hand overs be at the police station and often brought Ms E with him.
The mother agreed that the father invited her to attend an orientation day for School A which she went to. [C] attends that school and the father wants [X] to go there. She said she was not acknowledged as the biological mother and did not feel comfortable there. She does not support him attending that school.
The maternal grandmother
The maternal grandmother affirmed an affidavit on 15 November 2017 in support of her daughter. She is an Aboriginal woman from the (omitted) tribe. They are (omitted) people from (location omitted) just outside of Town B. The maternal grandfather is a Torres Strait Islander. They have been together for 25 years and have four children together.
The maternal grandmother was cross-examined. She says in Town B mother will have the support of her family, that [X] will benefit from being part of the family unit, and that they are able to provide emotional and financial support to the mother.
Family violence allegations
The parties make allegations against each other of family violence. The father says the mother was violent during the relationship. The mother says on one occasion the father provoked her. The mother says the father was violent and controlling and did not like her socialising. They accuse each other of erratic behaviour.
The father was cross-examined about the police LEAP records with respect to the interim intervention orders. He was cross-examined about the police entries on 23 March 2016 when the father sought a full interim intervention order against the mother. The police recorded that the father told them he wanted to bolster his case and that he wanted the IVO varied because of the texts. They recorded that the texts were not threatening.
The father denied the mother’s allegations that he was controlling and did not like her going out with friends. The mother says the father was not supportive of her employment at (employer omitted) which she greatly enjoyed. The father said he did not think it was the right place for her to work.
Communication between the parties
It is very apparent that there are difficulties with communication between the parties.
Although the issue of communication was raised in the first family report, it is concerning that the parents have not been able to improve their communication at all in the intervening period.
The mother says she feels that her relocating will assist with their communication as there will be more stability, routine, and structure. She said that [X] has told her that he wishes that mum and dad get along.
The mother denies that she has asked the father to care for [X] on many occasions so that she could attend social gatherings, work or travel. The mother said it was mostly with respect to work commitments but that she stopped asking him because of the lack of communication.
The father was cross-examined about [78] of the mother’s trial affidavit where she refers to asking the father if he could look after [X] so she could attend a 21st birthday party. She says that initially the father said he would consider it but then said no because he wanted to go out. She asked him if his grandmother could look after [X] and he said she could not. The mother says the father started abusing her and told her that he did not want to see her out afterwards as that would ruin his night. The father said he saw things on Facebook that caused him to be concerned.
The father called the mother’s work and told a colleague of her that he did not think she was in the right state mentally to cope with the work. Under cross-examination, the father agreed he made the call and said she had a breakdown because she was not in a good place at the time and was not coping.
The father also agreed he asked the police to conduct a welfare check. He said he was concerned the mother may have been drinking. He agreed that he sent the mother a text in July 2016 saying that [X] had told him there were two men sleeping at her house.
The father says that since August 2016 the mother has made him feel like he is being watched in the community and he does not leave the house because of how he is portrayed in the community. He says he experiences the same things of which the mother complains. He denies having standing in the community as the mother claims. The father denied tracking the mother and says he does not ask about her. People tell him things about her.
The mother agreed she received a call about [X] being out trick or treating. She said her boss’ daughter called her saying she was concerned. The mother said she replied to her saying she was not concerned as [X] was with his father.
The father agreed that the mother has offered him additional time with [X] in the past 12 months but says this has been for her benefit not his. He then conceded that the mother did agree to his request to have [X] for Halloween.
When asked about the mother’s proposal that he be able to spend additional times if he funds them, he said it would not be ample time for him to be able to take [X] to see his mob. This is another example where the father’s evidence was inconsistent. One the one hand he talks about having strong local connections. My impression however is that his strongest cultural and family connections are in Town C although I accept he may have some cultural connections to the Town A area as well.
The sibling relationship
One the father’s very real concerns is the impact of the proposed relocation on the sibling relationship between [X] and [C]. There is no doubt that the relocation will have a real and lasting impact on their relationship as they will no longer be living in the same household and having all of those incidental interactions siblings have when they live together. They also will not have the experience of going to the same school.
The father says the brothers will never see each other as he has already made an agreement with [C]’s mother that she have [C] for all of the school holidays. From his evidence it does not seem apparent that there have been any Court proceedings with respect to [C] and any formal arrangements in place. It would be highly unusual for a Court to endorse an arrangement where a child spends of all term time with one parent and all of the holidays with the other. This is because it means the child and parent don’t get to enjoy holiday time as well as time during school terms. I am not satisfied that the father won’t be able to make arrangements with [C]’s mother so that the boys can spend time together.
In cross examination, the mother agreed that it would be great for [X] if he could attend school with his brother but that in Town B he will be attending school with his cousins.
In the context of the other issues whilst [X] attending the same school as his brother would be beneficial to him it is not the most important factor.
Mental health of the parties
Both parties have had mental health issues.
The father says that he was referred for counselling after [X]’s birth and was prescribed Pristiq for depression.
The father was deeply affected by what he saw at [X]’s birth. The father agreed that his resulting depression and anxiety was serious but denied that it resulted in him being lazy. The father agreed that he experienced depression as a teenager. At age 19 he was cutting himself to cope and had suicidal ideation.
When the father was admitted to Town A Hospital in January 2016 he talked about his past mental health issues. He had depression as a teenager. He had a period of self harm and a suicide attempt when he was younger. In January 2016, Dr A increased the father’s prescription for Pristiq from 50 to 150 mg. In the records, Dr A described the father’s mental health as fragile. The father says he is an emotional person but he can cope if he gets help, which he has done when he needed. The hospital records also referred to the father’s gambling.
The mother was diagnosed with peri-natal depression. She received treatment and was monitored by the maternity ward at Town A Hospital. She developed pre-eclampsia and nearly lost both her and [X]’s life. The birth was traumatic for all.
The mother agrees that [X]’s birth was traumatic for both of them. After [X]’s birth both parents received counselling. The mother was prescribed Zoloft and she said she did a short course to help deal with the effects of the birth. She is not on medication currently, although she was offered a course of anti-depressants, as she does not want to be reliant on medication and believes that with the support of her family she should be able to be the best mother she can be. She says [X] can see how happy she is when she talks to her family and when he sees her with her family.
The father agreed that the mother will benefit from being in Town B as will [X]. The father said just as the father and [X] would if they lived in Town C.
The mother says she was lonely and distressed in August 2017 and a work colleague took her to see a nurse at the mental health unit of Town A Hospital. Since then she has been seeing Ms A. Ms A prepared an affidavit but was unavailable for cross-examination. The mother did not rely on her evidence.
The mother said she believes [X] deserves to see his mother happy that he has seen her cry.
I am satisfied that [X] is not at risk in either parent’s care because of their mental health issues.
[X]’s lack of attendance at kinder
The kinder program at (omitted kindergarten) is a certified program for full-time parents. At the time of the first family report [X] should change kindergartens to the (omitted preschool), which offers free places for aboriginal children. The mother needed to work full time to be able to pay for her living expenses and therefore it was not possible to the send [X] to one of the free aboriginal child care services.
The father stopped taking [X] to kinder in May 2017. The father gave varying evidence for his reasons for not sending [X] to kinder.
The mother says [X]’s teacher told her that she has seen changes in [X]’s behaviour since his attendance at kindergarten has become irregular during his time with his father. She says the teacher told her that [X] had been becoming upset and frustrated as he had not been able to keep up with the other children since he had lost his routine.
The father was cross-examined about the report from [X]’s kinder. [X]’s teacher refers to [X]’s attendance being consist with only attending when he is in the mother’s care. She also referred to [X] regressing. The father disagreed with the contention that the lack of consistent attendance each week has had a detrimental impact on [X]. The mother refers to her observations of [X] struggling to keep up with the other children after he stopped attending each week. The father disagreed. The father conceded that kinder is [X]’s preparation for school. He was defensive about his gambling and showed a lack of insight. The father said he likes to gamble but has always had food, clothes and other necessities. The father claims that [X] was still learning when he was at home with him. The father denied seeing any negative impact on [X] and any signs that [X] has been unsettled.
I accept the mother’s evidence that this has led to some difficulties for [X], as it is very disjointed for him to only go to kindergarten every second week. This has not been good preparation for him the lead up to going to school next year.
It is concerning that the father did not prioritise [X] continuing to attend kindergarten despite the orders in place and the recommendations of the first family report.
The father’s gambling
In the father’s affidavit prepared for the August 2016 hearing, he says he does not have a gambling problem.
The father denies the mother’s allegations that his gambling left the family short of money. The mother’s counsel suggested to the father that he was unable to pay the kindergarten fees because of his gambling. The father said he had asked the kinder to discuss the fees as he thought he had been charged too much on many occasions and disputes the amount they claim he owes.
The father was cross-examined at some length about withdrawals the he made from his bank account at the automatic teller machines at the (omitted) hotel. His bank account statements show regular withdrawals over a 12 month period and multiple withdrawals on the same day. For example, on 4 September 2017 the father made four withdrawals of $200, $150, $150 and $100. The last withdrawal was $150 on 13 October 2017. The statements produced under subpoena do not go beyond October 2017. The father says he has not gambled for the past month.
The father claims his gambling is a thing of the past. The mother claims that has been problem since the beginning of the relationship. The father denies this. He agreed that he had a gambling problem but says that he has addressed it. The father’s bank records show a concerning pattern of gambling. They show the father withdrawing about $7,000 at the (omitted) hotel over a 12 month period. The father agrees that this is the main place he gambled at but it was not the only place. I do not accept his evidence that this is a past problem he has addressed.
I find it is likely that the father’s gambling resulted in his being unable to afford the kindergarten fees for [X]. The father says he could not afford it, but I find he did not prioritise it as at the same time he gambled a significant amount of money. The lines can be blurred from when gambling is simply a hobby, like many others, and it being problematic. In this case it is problematic. I am not confident that the father has addressed this issue and he may need some ongoing assistance in doing so.
[X]’s cultural connections
The father is a (omitted) man. He does not have much family in the Town A District. He wants to travel with [X] to visit his family and to expose him to his culture. At [64] of his November 2016 Affidavit the father says he lives three hours away from his closest family. He has a large number of family in Town C which is about a 4 hour drive away from Town A.
The father says [X] is close with his paternal grandmother, who lives in Town C, although he does not see her often.
The father says that [X] has strong connection to the local area as a direct descendant of the (omitted) tribe. The father says he has strong cultural ties and standing the community. The father says he practises his culture daily.
The father talks about both his son being interested in being painted and learning traditional dancing and playing the didgeridoo.
The father proposes that [X] live with him if the mother relocates to Town B. The mother says she will not relocate without [X].
The mother has both Aboriginal and Torres Strait Islander heritages. Her mother is from the Queensland (omitted) tribe. Her father is a Torres Strait Islander.
In her affidavit the mother describes the cultural experiences she was able to give to [X] when they visited Town B in February 2017.
The mother’s sister, Ms L, lives in Town B with her husband Ms D and their two children, [C], aged eight and [D], aged five.
The mother says her father and brother-in-law are Torres Strait Islanders. Their culture is important to them and they take her brother-in-law’s children hand-line fishing and spear fishing. From the age of 4 or 5 they can begin to learn Torres Strait Islander dancing. She wants [X] to learn these things.
The mother gave evidence that as an Aboriginal and Torres Strait Islander woman she believes in her culture that the children should follow his mother’s culture. She follows her mother’s ways and wants [X] to follow hers, as well as participating in his Torres Strait Islander culture. She believes that the father follows his mother’s culture.
The mother says [X] has not had the opportunity to be immersed in her culture and only she can do that with him.
The father was cross-examined about cultural issues. He agreed it was very important that [X] be exposed to the mother’s culture as well.
The father gave evidence that he does not believe that [X] will be able to maintain his cultural heritage in connection with his father if he is spends less time with him. He had said that the mother spends as much time, if not more time, with her family than he does and that [X] only sees his paternal grandfather once a year. This is another example of the inconsistency of the father’s position. On his own evidence appears he has not maximised time with his family in Town C when [X] has been living in his care on a week about basis.
The mother’s counsel suggested to the father that the mother does not have cultural ties and standing in Town A. He said he believes she does through her work. I do not accept the father’s evidence on this point.
The family reports
At the time the first family report was prepared by Ms D, the father was proposing that the week about arrangement continue and that [X] should change kindergartens to the (omitted preschool), which offers free places for aboriginal children.
The mother spoke about wanting [X] to be in her primary care. She also spoke about wanting the opportunity to relocate to Town B. She wanted [X] to continue to attend the (omitted kindergarten).
Ms D identified the issues as being cross allegations of family violence, communication between the parents and decision-making, relocation and the emotional impact of the current arrangements on [X].
For the first family report, Ms D records the father saying he is an Aboriginal (omitted) man with family in the (omitted), Town A, and Town C areas, and that paternal family members have cared for [X] when he as been working on a Friday evening.
At the time the mother was seeking counselling assistance from Ms R. She expressed distress that “there were community rumours about me. I am the outsider and Town A is Mr Pender’s [the father’s] domain”. She also expressed distress at the father’s relationship with her best friend. She also said she was unhappy in Town A feeling “targeted, trapped, people are nasty to me, anxious and upset”. She did not think the shared care arrangement was good for [X] and said that she wanted to relocate to Town B but was prepared to put that aside for the moment and was planning to move to a bigger apartment.
Both parents acknowledged the bond that [X] has with the other parent. The mother acknowledged that the father is a cultural person and teaches [X] about family and culture.
In the evaluation section of her report, the family report writer refers to the substantial conflict between the parents from October 2015 continuing after their separation and the emotional challenges for both. She believed [X] was exposed to family violence because of this conflict. She observed that both parents were able to reflect on their responses and experiences, and the impact on [X], and both are capable and willing to focus on [X]’s needs. [X] presented as engaging, delightful and bonded to both parents. She commented that his attendance at kinder on a full time basis assists with his sense of routine and stability.
Both parents presented as committed to [X]. She opined that [X] has experienced a highly conflictual acrimonious separation between his parents, constituting family violence, and had experienced a major change in his living arrangement. He appears to have settled into the current arrangements. She recommended that the current arrangements remain in place including his full time attendance are child care.
She expressed the view that relocation is complex and the mother’s reasons are understandable, but the geographical distance involves substantial challenges. She also recommended that the mother and [X] have the opportunity to spend time in North Queensland with extended maternal family.
In the updated family report the Ms D identified that the same issues remained.
The father became tearful during the interview when discussing the mother’s relocation proposal. He remained of the view that the current shared care arrangement is working well. His partner moved in with him at the beginning of 2017 and from April 2017 he assumed the role of primary carer of his oldest son. He stopped working in September 2016 and relies on Centrelink benefits.
The father comments that he misses his family in Town C but that Town A is [X]’s home. The father’s partner also ceased work last year and is looking for work.
The mother was also tearful at times during her interview. She was accompanied by her parents. The mother talked about missing her family and talked about her family members who live in Queensland. Her parents have visited her twice in Town A in the last 18 months and she has spent two weeks in Town B. She will not relocate without [X].
The mother spoke about being in an “on again and off again” relationship in 2017 and ending it after there was family violence. She regrets [X] being exposed to that. She spoke of feeling isolated and lonely and feeling anxious and depressed. She described needing assistance as an outpatient with the Town A Mental Health crisis Team at Town A Hospital in July 2017 and October 2017.
The father expressed concern about the mother being in a violent relationship, not being able to handle [X]’s behaviour, swearing at him, and her going out partying as she is lonely.
The mother expressed concern about the father not paying attention to [X]’s hygiene, [X] being exposed to conflict between the father and [C]’s mother, and the father’s gambling.
Ms D interviewed the mother’s parents who said the mother is happier with family, which has a positive impact on [X], and that they are committed to ensuring [X] maintains his bond with his father.
The father told Ms D that he has not been able to afford to send [X] to child care during his week, but that he undertakes cultural and educational activities with him. He talked about the strong bond [X] has with [C] and the positive relationships the boys have with his partner.
The mother said she does not believe that [X] is coping with the current shared care arrangement and is clingy with her and misses her. She also expressed concern that he was missing out on his maternal cultural heritage and that not attending child care during his father’s weeks was having a negative impact on his behaviour.
Ms D refers to contacting the director of the (omitted kindergarten) in her report. In oral evidence she said the director was unwilling to talk to her and referred her to documents.
Ms D opines that the communication difficulties between the parents and their differences in opinion about the best parenting arrangements for [X] remain.
She notes the conflict between the parents has remained with a further intervention order being taken out by the father against the mother.
With respect to the relocation the report states that this issue remains complex and challenging. The move is highly likely to provide the mother with increased emotional and practical support and improve her mental health and thus her parenting responses. However, it notes limiting [X]’s time with the father and his older brother to holidays will potentially significantly change the nature of their relationship.
Ms D concludes that if the relocation is allowed it will be important to ensure that [X] has regular planned opportunities to spend time with his father and communicate by other means regularly such as telephone calls and Skype.
If [X] remains in Town A she states that there should be a general continuation of the shared care arrangement. She does not state if this should be the current arrangement or a different configuration as sought the mother in both reports. This was not explored in cross-examination with her.
At the November 2017 hearing, Ms D was cross-examined by the mother’s counsel and the father.
Ms D agreed that the mother’s distress at being separated from her family and feeling isolated has not abated and, if anything, has worsened.
She said it is important to separate the mother’s needs from [X].
She also said that the mother’s emotional health is an important issue in this case.
Ms D said the difficulty with respect to the relocation is the great distance involved and [X]’s young age. He does have the ability to maintain relationships but it will change the nature of his relationship with his father. It is not the same as living with someone day to day. Only spending holiday time with a parent is quite different as that parent is not involved in all the normal living time.
It is a reasonable position for the mother to say that her feelings of isolation impact on her day to day parenting and this will improve if she relocates.
It was put to Ms D that the mother says the week about arrangement is not working and that is apparent at kindergarten. Ms D said ideally [X] would have continued to attend in both weeks, as she recommended in her first report. It is a transition year for [X] given that he is going to school next year and would have provided him with some continuity in the every day arrangements. It is clear that the parents’ household are very different. The fact that the father did educational activities with [X] is not the same as [X] attending kinder.
Ms D said that [X] needs support in transitions but this is not just about education but also difficult family circumstances which may have impacted negatively on [X] as well as other factors.
She said a shared care arrangement is not easy for a child and it not uncommon for a 4 year old child to be unsettled. The arrangements the parents consented to are not easy and there are continuing issues with respect to their communication and differences in routine. These issues are highly relevant to whether or not the equal week about arrangement should continue in the event the mother does not relocate.
Ms D acknowledged that the fact that [C] has come to live with the father full time has given the opportunity for the sibling relationship to deepen. Siblings relationships are important and only seeing his brother four times a year will change the nature of that relationship. Telephone calls, Skype and facetime are of some benefit but it is not the same.
The father asked Ms D about the shared care arrangement. In the first report she recommended that arrangement continue. The second report does not make that direct recommendation. Ms D said that her opinion was that it was important that [X] spend time with both parents and extended family and experience his cultures. The issue of parental communication and the potentially negative impact on [X] was an issue in both reports. She said that for shared care to work there needs to be a high level of cooperation so that the child is not exposed to the parental dispute. The difference between the two reports is the mother now has a definite proposal for her relocation. There may be differences in approaches of the parents in a shared care arrangement but the fabric of the daily routines such as school, meals and bedtimes are important that requires the parents to agree. I do not have any evidence as to the extent to which the parties have similar or different routines about these matters but their inconsistences in the kinder attendance is on major concern. In addition, Ms D said the ongoing different emotional responses between the parents are not to [X]’s benefit.
Legal Principles and their application to children’s issues
Objects and primary considerations
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and, as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
In Godfrey & Sanders [2007] FamCA 102 Justice Kaye observed at [36]:
36. It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. 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.
The Full Court approved of these comments in Sigley and Evor (2011) 44 Fam LR 439.
[X] enjoys a meaningful relationship with both his parents. I am satisfied that he will continue to enjoy that relationship if the mother and he relocate to Town B. However, I accept that it will not be optimal and that the quality of the relationship will change.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
In her trial affidavit the mother alleged that the father was violent towards her during the relationship. The father made counter allegations against the mother. Both have taken out intervention orders at different times. Despite this [X] has continued to live in a week about arrangement for well over a year. The father was also concerned that [X] was exposed to family violence in the mother’s relationship with Mr S. The issue of violence was not the focus of the hearing.
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4 the High Court of Australia (“High Court”) found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
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. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
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.
In this case I am satisfied that it is in [X]’s best interests for his parents to have equal shared parental responsibility. Both parents have much of value to offer and should have the opportunity to have input into the major decisions which impact on [X]’s welfare. Section 4 of the Family Law Act sets out the definition of major long-term issues as:
… issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
This triggers the provisions of s65DAA as discussed above. Although [X] has been living in an equal shared care arrangement, I am not satisfied that it is in his best interests for that to continue. The parties have not made any progress in their communication difficulties. I do not have evidence about the routines in the household. I am satisfied that only attending child care every other week in the past several months would have been unsettling for [X]. It is of particular concern given that it was his preparation year for school.
If [X]’s parents remained living in the same city it would be in his best interests to spend substantial and significant time with his father whilst spending more of the time in his mother’s household.
Under the mother’s proposal it will not be possible for the father to spend substantial and significant time with [X] as his face to face time will be limited to holidays. There will be the opportunity for the father to spend additional times with [X] in Town B and this could involve time during school term which would enable the father to visit [X]’s school.
Relocation cases are not a different category of case to other parenting cases. As Murphy J commented in In Cowley & Mendoza [2010] FamCA 597:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
The Full Court of the Family Court considered the issue of relocation in light of the 2006 reforms in Taylor & Barker (2007) 37 Fam LR 461 (“Taylor & Barker”) and said at [53] and [83]:
53. We agree that 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 (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
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.
Whilst that is the paramount consideration it is not the only consideration. In AMS v AIF (1999) 24 Fam LR 756 at [792] His Honour Justice Kirby said:
……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
The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) 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 v Barker 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: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
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 (2007) FLC 93-343, Boland J. heard an appeal as a single Judge pursuant to s.94AAA(3) of the Family Law Act. At [79] to [81], Her Honour 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 stated:
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.
Additional considerations
There are 13 additional considerations which are set out in s.60CC(3).
I must consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
[X] is only 4 years old. He has not expressed his views and would not have the maturity to understand the implications of the mother’s proposed relocation.
Both parents have taken the opportunities to participate in decision-making for [X]’s welfare and to spend time with him.
Apart from the father’s failure to keep [X] attending at kinder, both parents have maintained [X] financially.
Both parents are able to provide for [X]’s emotional, intellectual and physical needs.
The parties continue to have difficulties communicating with each other effectively. The parties may benefit from using one of the online shared parenting applications such as My Mob, Two Houses or Our Family Wizard.
I have addressed the issue of family violence above.
I think that the order that is least likely to lead to further proceedings is the order allowing the mother and [X] to relocate to Town B. It is clear from the two family reports and the mother’s evidence that her circumstances in Town A have not improved. Neither has the parties’ communication.
Section 60CC(3)(h) is informed by ss.60CC(6) and 61F emphasises the importance of recognising the rights of Aboriginal children to maintain connections with their kinship networks and culture. Culture is not something that can simply be learnt from books and taught by an outsider. One aspect mentioned by the father was sorry business. He seeks an order addressing that. I think that it is appropriate as it is a culturally significant event which [X] should have the opportunity to participate in with both families.
This is not a case of preferring one aboriginal culture over another. The importance of [X] having the opportunity to be immersed in the culture on both his paternal and maternal sides is important. The court must determine the relevant s60CC considerations holistically, balancing [X]’s rights and needs.[1] I am satisfied that both parents acknowledge the importance of [X] being able to experience his cultures on both sides of the family.
[1] Backford and Backford and Anor [2017] FamCAFC 1
Conclusion
Relocation cases are difficult cases to resolve as there is often no middle ground or compromise. In this case the distance between Town A and Town B is significant.
Neither party suggested that the father could also relocate. I accept that is not an option for him for several reasons; the father has the full-time care of his oldest son [C] and the father would be also completely disconnected from his culture.
[X] enjoys a close and loving relationship with both parents and extended family members on both sides of the family. The mother’s proposed relocation will mean that [X] will be separated from his brother. Whilst I do not accept the father’s evidence that the two boys will never see each other, I do accept their relationship will change and be weakened. I also accept that [X] has a close relationship with other members of the paternal family, particularly his grandmother. [X] will be able to spend time with her during the holidays. The father’s own evidence was that they do not see her frequently.
The distance between Town A and Town B and the expense in travel means that [X] won’t be able to see his father and brother regularly. Frequent and regular Skype and telephone communication will be important to help [X] to maintain those connections but are not a substitute for face-to-face time. I am satisfied that the mother has thought through the costs carefully and will have the ability to fund the cost of travel. I am satisfied that the mother will pay for the travel expenses for [X] to spend time with the father. The father will only have to fund additional trips that he may arrange. I accept that this will not be frequent because of the expense but also because of his responsibilities for [C].
The move to Town B will be a significant change for [X]. He is used to seeing both his parents and his brother regularly.
It makes sense for the change to happen now before [X] starts school. It will be a significant adjustment for him, living in a new city and starting school. He has had to make significant adjustments including, since his parents separated, living in different homes, his father repartnering, and his inconsistent attendance at kinder.
I accept the mother’s evidence that she is lonely and isolated in Town A. It is a small town. Both parties refer to gossip in the community. The father is however more established in Town A. He is living with his partner and his oldest child. The mother moved to Town A to continue her relationship with the father, she does not have other connections there. I accept that she is unhappy and this has impacted on her parenting. Children pick up on their parent’s moods and unspoken signals from them as they are highly attuned to their care givers. The situation has not improved for the mother and has in fact worsened.
I have carefully considered the competing considerations in this case. It is very much a balancing exercise, some of which is based on predictions and assumptions about the future.[2] The central issue in this case is balancing the effect on the parenting capacity of the mother if she remains in Town A and the ability for [X] to maintain a meaningful relationship with his father if she relocates. I am satisfied that it is in [X]’s best interests to permit the mother to relocate with [X] to Town B.
[2] Lambton and Lambton (No. 2) [2017] FamCAFC 230.
I certify that the preceding one-hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Harland.
Associate:
Date: 18 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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