Sabens and Tadkin
[2010] FMCAfam 481
•19 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABENS & TADKIN | [2010] FMCAfam 481 |
| FAMILY LAW – Children – relocation – application to relocate child’s residence granted. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60CG, 60DAA, 61B, 61C, 61DA, 65C, 65D, 65DA, 65DAA, 65DAC Evidence Act 1995 (Cth), s.140 |
| B v B (Re Jurisdiction) (2003) FLC ¶93-136 D & D [2005] FamCA 365 M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC ¶91-979 Marsden and Winch (No. 3) [2007] FamCA 1364 MRR v GR [2010] HCA 4 Mulvany v Lane [2009] FamCA 76 N and S and the Separate Representative [1996] FamCA unrep925; (1996) ¶92-655 Sampson v Hartnett (No. 10) [2007] FamCA 1365 U v U (2002) 211 CLR 238; (2002) FLC ¶93-112 Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286 |
| Applicant: | MS SABENS |
| Respondent: | MR TADKIN |
| File Number: | SYC 7333 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 December 2009 |
| Date of Last Submission: | 4 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 19 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Warne |
| Counsel for the Respondent: | Mr Gilbert |
ORDERS
That the parties have equal shared parental responsibility for the child.
That the child live with the mother.
That the mother be permitted to relocate the residence of the child to South Australia.
That until the mother and child relocate to South Australia, the child spend time with the father as follows:
(a)Every Tuesday from 3:30pm to 6:00pm;
(b)Every Sunday from 10:00am to 6:00pm;
(c)Other times as agreed between the parties.
That upon the mother and child relocating to South Australia the child spend time with the father as follows:
(a)For five consecutive days during three South Australia gazetted school holiday periods each year, in Sydney, from 10am to 6pm each day. The mother will give the father four weeks notice of her intention to bring the child to Sydney and the father is to confirm within seven days that he will be available to spend time with the child. In the event that the father is not available to spend time with the child for at least three days then the mother is not required to bring the child to Sydney for that period.
(b)In the event that the mother is in Sydney for any reason other than to facilitate the child spending time with the father in accordance with 5a, the child shall spend time with the father in Sydney for three days, or on each day that the mother is in Sydney if she is in Sydney for less than three days, from 10am to 6pm.
(c)Should the father be in Adelaide or any place closer to the mother’s residence than Adelaide, the child will spend time with the father for six hours at times agreed between the parties on each weekend day for a period not exceeding three consecutive weekends and for hours at times agreed between the parties on Tuesday and Thursday for a period not exceeding three consecutive weeks. The father must give the mother two weeks notice of his intention to spend time with the child in accordance with this order.
(d)Should the father be in Adelaide or any place closer to the mother’s residence than Adelaide on the child’s birthday or on Father’s Day he will spend time with the child on the child’s birthday for at least two hours if it is a week day and four hours if it is a weekend day and he will spend time with the child on Father’s day for six hours at times agreed between the parties. The father must give the mother two weeks notice of his intention to spend time with the child in accordance with this order.
(e)Other times as agreed between the parties.
That for the purpose of the time the child spends with the father in accordance with order 5a, the mother is to be responsible for the cost for the child and an accompanying adult to travel to Sydney and back to Adelaide.
That for the purpose of any time the father spends with the child in South Australia, the father is to collect the child from the mother at a place agreed between the parties and within one hour travel of the mother’s residence at the beginning of his time with the child and is to return the child to the mother at the same place at the conclusion of his time with the child.
That the father is to have the following communication with the child:
(a)Liberal and flexible telephone communication;
(b)Communication by way of letters, mail and gifts.
That each party is to notify the other as soon as practicable in the case of any medical or other emergency affecting the child or in the event that the child is hospitalised.
That each party is to refrain from making critical or derogatory remarks about the other party in the presence and/or hearing of the child and each party is to do all things necessary to ensure that no third party makes critical or derogatory remarks about the other party in the presence and/or hearing of the child.
That for the purposes of communicating information between the parties the mother and the father shall:
(a)Restrict any conversations in the presence or hearing of the child to issues about the day to day arrangements under these orders or issues pertaining to the child’s welfare and shall refrain from having disputes in the presence or hearing of the child;
(b)Communicate by mobile telephone about all other matters including any disputes in relation to parenting matters.
That if the father transports the child in a motor vehicle he is to ensure that the child travels in a car seat that is age-appropriate and safely secured at all times.
The mother is to provide the father with a written list of foods that the child is allergic to or is otherwise not to eat and the father is to ensure the child does not eat any foods on that list.
Each party is hereby restrained from using profanities in the presence and/or hearing of the child.
The father is responsible for providing and shall ensure he has adequate and appropriate clothes, food, nappies and toiletries for the child when the child is in his care.
IT IS NOTED that publication of this judgment under the pseudonym Sabens & Tadkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7333 of 2007
| MS SABENS |
Applicant
And
| MR TADKIN |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother to relocate with the child of the parties, R, born [in] 2006 from Sydney to South Australia.
Background
The father is 34 years of age and the mother 41. The parties commenced a relationship in 2004. In July 2006 the only child of the relationship was born. Soon after the birth the parties separated.
The father is currently studying for a [course omitted]. He is casually employed and currently on a disability pension. In 1983 he sustained a brain injury as a result of [an] accident. The father regularly attends on a Neuropsychologist, Dr D, however no formal assessment of his level of functioning was provided to the Court.
Prior to R’s birth, the mother worked for [omitted] for ten years. In late 2006 the mother became involved in [an omitted] venture with an Aboriginal tribe, which will be based in South Australia. The business venture was the catalyst for her desire to relocate with R.
The law
The power to make a children’s order is provided for in s.65d of the Family Law Act 1975. This power is subject to the effects of a variety of provisions in Part VII of the Act.
Either or both parents, the child, grandparents or ‘any other person concerned with the care, welfare or development of the child’ may apply to the court for parenting orders: see s.65C. In this case the parties are the parents of the children. On the morning of trial the grandmother sought to intervene however she did not attend in person (sending only a letter) and her application was refused.
In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B:
60B [Object of Part and Principles underlying it]
(1) [Object of Part] 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) [Principles underlying object] 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; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Best Interests of the child
The court must regard the best interests of the child as the paramount consideration: see s.60CA. When determining the best interests of the children, one must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC as follows:
60CC [How a court determines what is in a child’s best interests]
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child
having contactspending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
In Marsden and Winch (No. 3) [2007] FamCA 1364 Warnick and Thackray JJ discussed the relationship between the primary and additional considerations in s.60CC, saying:
77. The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
78. It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
Their Honours’ comments in Marsden were referred to with approval in Mulvany v Lane [2009] FamCA 76 at [84] by May and Thackray JJ who said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
The Court must also consider any risk of family violence, as required by s.60CG:
60CG [Court to consider risk of family violence] (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The phrase ‘family violence’ and the terms ‘abuse’ are given detailed definitions in s.4 of the Act:
4(1) [Definitions] in this Act … unless the contrary intention appears:
…
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.
…
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
…
Parental Responsibility
When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61b:
61b [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61c provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ may arise as a result of s.61da which provides:
61da [Presumption of equal shared parental responsibility when making parenting orders] (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65daa).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The effect of an order for shared parental responsibility is set out in s.65dac of the Act as follows :
65dac [Effect of parenting order that provides for shared parental responsibility] (1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65dae).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Parenting Time
When deciding upon orders for parenting time, further specific requirements are set out in the Act. If orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65daa states:
65daa [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1) [Court must consider whether equal time is in the best interests of the child] If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60ca is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) [Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60cc(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60cc(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60cc(3)(i)).
Note 2: Paragraph (c) reference to future capacity–the court has power under section 13c to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In MRR v GR [2010] HCA 4 (Rosa’s case), the High Court addressed the relationship between s.65DAA and s.61DA, saying:
[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 is a set of criteria which must be fulfilled in cases where an order for equal shared parental responsibility has been made and consideration is being given to equal time or substantial or significant time. As the High court said in Rosa’s case:
[13] It is only where both questions [in s.65DAA(1)(a) and (b)] are answered in the affirmative that consideration may be given, under par (c), to the making of an order. … 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.
Importantly, the requirement of reasonable practicality ‘requires a practical assessment of whether equal time parenting is feasible’: see Rosa’s case at [15].
Other Considerations
Whilst the best interests of the child are the paramount consideration, it is important to note that this is not the sole or only consideration when making a parenting order: see the discussions in B v B (Re Jurisdiction) (2003) FLC ¶93-136 and U v. U (2002) 211 CLR 238; (2002) FLC ¶93-112 and the cases referred to in those judgments. In particular I note the comments of Hayne J in U v U that:
[170] … the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child's wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) ("the Act") makes plain [s 65E], the Family Court "must regard the best interests of the child as the paramount consideration", but that does not deny the fact that there are at least three persons who will be affected by the order that is made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.
Consideration of the rights and interests of the parents is also relevant, particularly the rights of parents to freedom of movement between states under the Constitution, but also the liberties adults generally enjoy in a free society.
Reasoning Process
In Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286 the Full Court considered the reasoning process that should be applied under the Act in its current form with respect to interim decisions: see para.[82]. Having regard to the decision in Rosa’s case this guide can be usefully adapted to final hearings as follows:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the hearing and making relevant findings about those issues;
c)considering the matters in s.60CC that are relevant and making findings about those matters, and findings as to what would be in the best interests of the children;
d)deciding what orders should be made about parental responsibility;
e)considering any other matters that are relevant to a decision under s.65D;
f)if s.60DAA is engaged, considering whether it is in the child’s best interests, and ‘reasonably practicable’ to make an order that the child spend equal time with the parents, and if not equal time, substantial and significant time.
Injunction
In a situation where the parents are not married, the power to restrain the child’s movement can be exercised with a parenting order under s.65D or by an injunction under s.114(3) of the Family Law Act 1975.
114[Injunctions] (1)
…
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate. (emphasis added)
In Sampson v Hartnett (No. 10) [2007] FamCA 1365 at [58] Bryant CJ and Warnick J concluded:
‘…there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare because:
(i) the location of the child will usually be the critical factor, leaving to the patents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.’ (emphasis added)
(a) The Proposals of the parties
Both parties propose that they have equal shared parental responsibility for the child.
The mother wishes to relocate R to [P], South Australia. She proposes at least three return visits a year to Sydney so that R can see his father. She proposes that R spend time with the father whenever the father travels to South Australia.
The father opposes the relocation. Should the mother’s application be denied, he initially sought orders for R to live with him. As the trial unfolded it became apparent that he would not be able to manage the primary care of R and he then sought orders preventing her from relocating, relying on the power described in Sampson v Hartnett (No. 10) [2007] FamCA 1365. In the event the mother does not relocate he seeks orders that R spend regular and significant time with him.
(b) The evidence and issues in dispute
The Evidence of the Witnesses
At the trial both parties relied on their respective evidence and the evidence of the family report writer. The mother called Ms C and the father called Dr D. Both were by telephone their evidence was frank and forthright. Dr D was giving a professional opinion. Ms C’s evidence did not appear to be contentious. I accept the evidence of
Dr D and Ms C.
The father
The father experienced difficulty in providing answers during evidence, with long gaps in time and vague statements. He had difficulty recalling dates as well as certain contents of his affidavit. The father obviously suffers from the impact of his head injury, as a result of [an] accident in 1983, and a less serious accident in 1995.
The father suffers from short term memory loss and his cognitive functions are mildly impaired. He also suffers from Organic Mood disorder with Bipolar Type 2 features. During cross-examination, Dr D stated that as a result of this condition the father experiences hypomanic episodes and major depressive episodes. Symptoms of a hypomanic episode include distractibility and inflated self-esteem. Symptoms of a major depressive episode include prolonged depressive moods, diminished ability to think and indecisiveness. In his medical report, Dr D states the father has experienced problems with impulsivity and irritability. Dr D’s evidence is in accordance with the mother’s allegations of the angry outbursts displayed by the father on several occasions.
The father presents as laconic and emotionally distant. His refusal to see R, following another’s advice, shows a lack of insight and independence. Where his evidence differs from the mother I prefer the evidence of the mother.
I am not satisfied he has the capacity to provide day to day care for R. He lives in a studio apartment and has not thought through all of the needs a child of this age has. His mother, Mrs T, frequently assists the father in the care of R. However, Mrs T also has health issues, having being diagnosed with a brain tumour, and is under the care of Dr G. Dr G’s letter, dated 2 December 2009, was tendered as an exhibit. The letter certifies that Mrs T is currently fit and capable of child care.
During the proceedings Mrs T wished to be joined as a party and present herself as an alternative guardian for R. She did not make an appearance at the hearing, either in person or by agent. Mrs T’s letter addressed ‘To Whom It May Concern’, asked the Court to grant her ‘full authority’ to manage R’s daily needs. However, her letter includes an important qualification to her caring for R:
‘As long as my health would allow me, I will promise to do my absolute best to bring up this…boy…’ (emphasis added)
In his affidavit, the father gives evidence of Mrs T’s operation on
16 February 2009 and that he has cared for her for several months. At trial the father stated she is still recovering from her operation. I am not persuaded she could give the father the level of assistance in caring for R that is necessary.
The father’s case is that it is unrealistic for him to move to South Australia and even if he were in Adelaide more regular time with R would be realistic. I accept that evidence, noting that it also reflects on his real level of capacity.
The mother
The mother presented as an engaging and forthright witness. Whilst rather dogged on some issues I found her evidence frank and compelling. I largely accept the evidence of the mother, although with two qualifications.
First, her evidence for the possibility of the business venture and the associated lifestyle in South Australia appears to have resulted in her seeing it more positively than is entirely realistic. Whilst her views in this regard are very enthusiastic – seeing the venture through ‘rose coloured glasses’ – they do not go beyond what is often seen when people have an exciting opportunity in their lives. I have had regard to this observation and tempered my views of her evidence about the move and the venture accordingly.
Secondly, the mother said she would move whether R was permitted to relocate or not. She was very strong in her evidence and unable to reconcile her obvious deep commitment to R in this regard. It seems to me that this is a reflection of her anger and frustration at finding herself in the position of potentially losing an opportunity that is important to her, to protect a relationship between R and his father that the father refused to acknowledge or further for around one year of R’s short life so far.
Ultimately I accept that she would find the situation so intolerable, if R were not permitted to leave Sydney that she would be likely to go without R although believing he would soon follow as the father could not realistically care for him. I am satisfied that her views are not in anyway motivated by a desire to harm the father’s relationship with R, but a need to pursue her own life and not be restricted by the father’s residential decision.
Issues at the Hearing
A number of factual issues need to be determined:
a)The likely effect of a move on R;
b)Whether the father is committed to playing a meaningful and significant role in the child’s life;
c)Why the father spent little time with the child prior to June 2008;
d)The nature of the father’s current relationship with the child;
e)The father’s capacity to care for the child;
f)The importance to the child of both his indigenous identity and his Chinese/Dutch identity;
g)Whether the mother’s allegation of domestic violence is substantiated;
h)The viability of her business venture; and
i)Whether there are opportunities for the child in South Australia.
Likely impact of relocation
It is likely R would be considerably distressed in the event he is not permitted to relocate with his mother and is left in the father’s primary care. At paragraph 38 of the Family Report, Ms McMahon states:
‘If [R] were to move from his mother’s care to that of his father’s, he would most likely suffer great distress, as his mother is his primary attachment figure. While [the father’s] relationship with his son is developing, it is not strong enough to support [R] through the trauma of being separated from his mother, and so there are risks to [R] if the mother is not permitted to take him to South Australia.’
The Family Report, at paragraph 37, suggests R’s separation from the mother will probably cause long term negative effects on his emotional development. The evidence suggests it is better for R to continue to live with the mother.
Whether the father is committed to a meaningful and significant role
While the father wishes to be part of R’s personal development, the time he has spent with R does not show a strong commitment to the child.
The father has acknowledged that his involvement in R’s life has been withdrawn for periods of time. At paragraph 38 of the Family Report, Ms McMahon comments that the father:
‘…It is unclear whether [the father] is committed to maintaining a relationship with his son especially if circumstances occur where the practicalities of maintaining a relationship with his son may interfere with other priorities that [the father] may have.’
These priorities include his work [and studies]. During cross-examination the father admitted it was important for R to fit around his work schedule. This accords with my observations.
Why the father spent little time with the child prior to June 2008?
With the exception of the time between R being two to three months of age and twelve months, the father did not spend any time with him from mid 2007 until June 2008.
In his affidavit, the father states that the mother ignored his phone calls and would not permit him to be near R. The father alleges the mother frequently claimed R was not his child and that she:
‘would only contact me in the end to get a signature so she could get money from the government.’
In the mother’s affidavit she gives evidence of setting up a nursery in the father’s studio apartment. She has also engaged services from [omitted] Community Centre to assist both parties in their role as R’s parents. Given that the mother has in the past encouraged the father to build a relationship with R, I do not accept the father’s version.
I find the father ceased spending time with R upon contact by the Child Support Agency concerning the payment of child support on
7 September 2006. The current proceeding originally arose because the father was reluctant to acknowledge that R was his son. Time with R resumed only when the paternity testing was carried out.
The nature of the father’s relationship with the child
In his affidavit, the father states that he has a close relationship with R:
‘“[R]” and I have developed a close and a loving relationship. He runs toward me with his arms out saying “Daddy, daddy…” every time he sees me. My friends and family have noticed how excited “[R]” is when he sees me and how well we get along.’ (emphasis added)
However, the father’s evidence is not entirely consistent with the Family Report. Ms McMahon observes that while R was reasonably settled in his father’s presence, he did not reciprocate the father’s affections. R remained passive even when prompted by the mother to cuddle his father. The Family Reporter found that R was ‘developing an attachment’, not that he had an attachment. Whether this attachment develops further depends upon time and the father’s commitment. I have doubts about the father’s ability to fully commit to R given the events to date.
The father’s capacity to care for the child
The mother alleges of an incident where R was at risk of harm as a result of the father’s negligence. Approximately a week following the birth, the father visited R at the hospital. The father placed R on his chest as he slept on a foldout bed in the mother’s room. Later R’s cries alerted the mother to the fact that R fell onto the floor between the wall and the bars of the foldout bed. The father denies the incident. I accept the mother’s evidence.
According to the mother, the father became agitated and defensive upon her rebuke for the oversight. The parties had a verbal argument. Following the incident the hospital’s social worker became involved. I find the incident reflects the father’s limited capacity to care for a child at R’s age.
The father’s brain injury has also impaired his ability to provide care for R. At the trial Dr D stated the father would find it ‘challenging’ to cope with the parenting responsibilities alone and the father’s hypomanic and major-depressive episodes would detrimentally affect his parenting ability.
The importance of the child’s cultural identity
The mother expressed her desire for R to identify with his indigenous culture. During the trial it was evident that the mother strongly identified with the [omitted] tribe, referring to her ‘obligations’ to and respect for the aboriginal tribe.
The father is of Dutch and Chinese heritage. In his affidavit the father indicated his wish for R to become familiar with his cultural heritage, in particular his Chinese background. However, the father’s evidence is rather brief on the importance to R of his Chinese/Dutch identity. There is little to show how he would ensure R could become involved in his heritage.
Domestic violence
The mother alleges abusive text messages were sent from the father as well as an incident of family violence on 31 August 2006.
In her affidavit, the mother states that following a hospital visit for R to undertake some tests she became unwell. The prolonged visit to the hospital meant they were late to meet up with the father. According to the mother this angered the father and he started ‘screaming’ at her. As she left the father’s house, he followed her to the car and continued to verbally abuse her. In addition to the screaming, the father, whilst R was seated in the vehicle, kicked the car door several times.
The father denies the allegation to the extent it goes beyond an argument. The mother reported the incident to the police and photos of the damage to the car were taken. In the circumstances I accept the mother’s version of events.
Viability of the business venture
At paragraph 23 of the mother’s affidavit filed 27 August 2009 she states one of her main reasons for developing the business venture is to provide a better life and education for R.
Despite claims of future betterment the mother has placed no significant evidence concerning the venture before the Court. The mother has indicated that as a result of a confidentiality clause with business investors she cannot disclose any specific details about the venture. Some detail was given at trial by her. I do not accept that this clause would have prevented evidence being given, at least of the clause.
It is difficult to make a finding beyond noting her enthusiasm for the venture. There is nothing before the Court to give confidence that the venture will lead to a stable job and income. While bearing in mind that Aboriginal organisations may not necessarily have the same formal business structures often found in large corporations, the venture appears to remain at a formative stage even though considerable time has passed.
I am not persuaded that this is a venture that has good prospects. However, I am satisfied it is a real venture and provides possibilities for the mother that may well lead to more.
Opportunities for the child in South Australia
The mother gave evidence of her enquiries as to arrangements for R’s pre-schooling in South Australia. The mother informed the Court of an Aboriginal program funded by the Commonwealth Government called the [omitted] Preschool, located in [P]. While there is no immediate availability for R upon arrival in South Australia, the child will be on a waiting list with priority.
The mother proposes to stay with a friend, Ms C. Ms C lives with her partner and two children in a three-bedroom house located at [P]. The mother and R will be accommodated in the third bedroom.
Ms C gave evidence that within the [P] area there are child care centres and her extended family will be available to assist with the care of R along with her own children.
I am satisfied on the evidence before me that the living arrangements in South Australia are sufficient for a child at R’s age.
(c) Consideration of the Factors in s.60CC
Meaningful relationship
In considering the first of the primary considerations in s.60CC it is necessary to consider the benefits to the child of having a meaningful relationship. The Full Court in McCall & Clark [2009] FamCAFC 92 summarised the existing authorities with approval, saying:
[115] The phrase ‘meaningful relationship’ in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J, after setting out the definition of ‘meaningful’ and ‘meaning’, said at paragraph 26:
What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[116] Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC ¶93-313 of the effect of the amending Act and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later at paragraph 36 said:
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.
[117] Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Ms McMahon observes the father is developing a positive relationship with R. At paragraph 36 the family report writer, Ms McMahon, says that if the mother’s application to relocate is granted, R’s growing relationship with the father is likely to suffer:
‘Given [R’s] age, it would be extremely difficult for him to maintain a sense of his father if he did not spend time with him at least twice a month if not weekly.’
However, the father spent little time with R prior to June 2008. In such a lengthy period of R’s life, the father was not able to develop a relationship with the child. The inconsistency in the time spent with R even after June 2008 raises doubts as to the father’s commitment to R. The Family Report substantiates the mother’s concerns as to the father’s unavailability when other priorities in his life conflict with time with R. Based on the father’s past performance in fulfilling his parenting role together with his disability, the prospect of R developing a meaningful relationship with his father is limited.
Protection from harm
While there is nothing in the material to suggest that the father has been violent with or abused R, the incident on the 31 August 2006 was an incident of family violence. His behaviour on that date raises the need to protect R from psychological harm of being exposed to family violence in the form of angry outbursts.
Any views expressed by the child
R is three years of age. Given the child’s youth, it is not possible to ascertain his views nor could such views be given much weight.
The nature of the child's relationships
Paragraph 35 of the Family Report summarises R’s relationship with the parents.
‘He has a strong attachment to his mother and is developing an attachment to his father.’ (emphasis added)
His mother is clearly his primary carer and meets his day to day needs.
The willingness and ability of each parent to facilitate and encourage the child's relationship with others
In considering this factor I must take into account ‘the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent’: s. 60cc(4).
In the past the mother has been willing to facilitate a relationship between R and the father. This attitude continues even in the framework of her proposed relocation with R to South Australia, subject to certain practical limitations. In addition to allocating time to be spent with the father, the mother’s proposed orders at paragraph 8 provides for liberal and flexible telephone and Skype communication.
The mother is adamant that she has the ability to maintain at least three visits a year in Sydney, allowing R to continue his relationship with the father, whether she is on a supporting parent’s benefit or employed with an income. However, I have some concerns as to her ability to carry out this commitment three times a year. This is especially the case if her financial position deteriorates in the event the business venture becomes financially unviable. Whilst I am satisfied that the mother is genuine in her commitment, however, finances may force a reduction in the number of visits.
The father does not seem to have the same supportive attitude. The Family Reporter notes the father’s description of the mother as ‘self-centred, selfish and very manipulative’ and that he did not want to have a child with the mother. At trial the father stated he was advised by his previous solicitor ‘not to do anything’ until DNA testing was conducted. This was fuelled by his own doubts about R’s paternity. The father’s negative views of the mother suggest it is unlikely he would actively support and encourage R’s relationship with her. He is, at best, ambivalent about travelling to South Australia. This may be due to his disability but also tells against his commitment to R being a strong one.
The likely effect of any changes in the child's circumstances
In considering the likely effect of any change in the child’s circumstances it is important to consider not only the intended changes, but also the potential impacts upon the child if the change does not result in the outcomes expected or envisaged. That is, consideration of the risk that the change will not work out for the child.
R currently lives with a parent of a low-income background: a single mother on social security and living in Department of Housing accommodation. If the business succeeds there will be more money for R and the mother, and they may have the benefit of a supportive small community. In considering R’s best interests I must also turn my mind to a situation, following relocation, where the business venture may fail. This concern was not allayed when during examination it was apparent the mother did not and could not turn her mind to the possibility of the venture’s failure: she is convinced the venture will work. It is possible the venture will fail and she will have to decide whether to remain in South Australia in the area of her Aboriginal community or return to Sydney.
The Family Report indicates R will suffer distress and long term negative effects on his emotional development if the status quo changes: that being, R is left in the father’s care and mother relocates on her own to South Australia.
Practical difficulties and expense associated with contact
Given the distance between Sydney and South Australia, the relocation means there will be practical difficulty and expense for R to maintain a relationship with both parents. The father’s financial position means his ability to travel frequently to South Australia is significantly limited. Telephone and Skype assist but are not the same as personal time.
Capacity of the parents to meet the child's needs
The mother has always been R’s primary carer and her capacity to provide for R’s needs is not challenged.
The father’s brain injury has impaired his capacity to care for R on a daily basis, although it does not prevent him from providing a level of care for R. The father’s difficulties are outlined above.
The maturity, sex and background of the child and the child’s parents
Given R’s young age, the need for constant attention and care is vital. Since birth the mother has been able to provide this level of care. On the other hand the father’s difficulties and concerns about other priorities raise doubts as to his commitment to fulfil his parental responsibilities.
An Aboriginal child’s right to enjoy his culture
R is of an Aboriginal background. The court must consider R’s right to enjoy his Aboriginal culture, including the right to enjoy that culture with other people who share that culture and the likely impact that any proposed parenting order under this part will have on that right. One aspect of the relocation is the opportunity for R to connect with the tribal group that the mother associates with, the [omitted] tribe.
Similarly R has a right to enjoy his Dutch and Chinese heritage. On the evidence there are no practical steps suggested for allowing R to enjoy his heritage beyond having time with the father and paternal grandmother.
The attitude to the child and the responsibilities of parenthood
In considering this factor I must take into account ‘the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent’: s.60CC(4).
The mother has been R’s primary carer since birth and during cross examination reiterated how important R is to her. However, her position to relocate regardless of the court’s final decision presents an unusual factual situation: should the mother’s application be denied, she will leave R in the father’s care despite her concerns of his parenting capacity and she will consequently not participate in R’s life.
At paragraph 37 of the Family Report:
‘At times, [Ms Sabens] did not seem to see the possibility of her moving to South Australia without [R] as a likely, or even possible, outcome of this action. If she is determined to move to South Australia, with or without [R], it would raise serious concerns about her ability to focus on the child’s needs rather than her own. Her willingness to place her son in a situation which would cause him great distress, and probably have long term negative effects on his development, brings into question her ability to understand her child’s emotional needs and her commitment to his wellbeing.’
While the father wishes to be part of R’s personal development, the time he has spent with R is indicative of his ambivalent attitude towards the child. The father ceased spending time with R upon being contacted about child support and only resumed his time with R resumed when the paternity testing was conducted. The family report writer was uncertain as to the father’s commitment to R when other priorities in his life conflict.
In light of the evidence, it is apparent that the father does not understand the level of parental responsibility required, in particular the need to maintain the routine and consistency in the child’s life.
Any family violence
No family violence order that applies to R or the mother has been made known to the court. However, the incident on the 31 August 2006 gives rise of to an issue of family violence and needs to be taken into account.
Whether it be preferable to make an order that would least likely to lead to the institution of further proceedings
It is preferable to make a final order in this case to allow the parties to move on in their lives.
Any other fact or circumstance
I do not consider there are any other relevant facts or circumstances.
(d) Section 60CC(4)
Having regard to the history of the matter and the evidence at trial, it appears to me that if the mother did not actively support and press R’s time with the father it would soon fall away. Had she not been supportive in the past the relationship would be far less than it is now.
(e) Any other matter
The mother’s right to free movements is a real issue in this case, not a theoretical one. She desires to move to pursue a life goal and career opportunity. When considering this right it must be given appropriate weight in the context of this case.
(f) Parental responsibility
The father’s acquired brain injury means his ability to exercise sound judgment in relation to the child’s care is compromised and his ability to negotiate with the mother limited. The parties both seek equal shared parental responsibility and therefore I will make such an order.
(g) Section 65DAA
It is necessary for the court to consider whether equal or substantial and significant time should be spent by R with the father as a result of s.65DAA of the Act. It is not reasonably practicable on the facts, if the mother relocates: see MRR v GR [2010] HCA 4.
If the mother does not relocate equal time is still unrealistic as it would not be in R’s best interests due to the father’s lack of capacity. To the extent that substantial and significant time could be implemented it would be only technical fulfilment of the section as I am not satisfied that the father could care for R for blocks of time.
Conclusions
I am satisfied that it is in R’s best interests to be primarily cared for by the mother and have time with the father. I am not satisfied that the father could provide full time or even substantial care for R. The real issue is whether the mother should be injuncted from leaving Sydney so as to preserve regular time with the father.
The power to issue such an injunction is available under the Act: Sampson v Hartnett (No. 10) [2007] FamCA 1365. When weighing the potential impact of such an injunction on R, as a result of its likely impact on the mother against the impact of reduced contact with the father if the mother relocates, I find that it is in R’s best interests that the mother be allowed to relocate with him.
Even if I were wrong in this regard, the impact of the reduced contact between R and his father does not appear to me to outweigh the mother’s right to freedom of movement in this case, bearing in mind that:
a)The father has not shown a strong commitment to R in the past;
b)The time with R is, relatively limited, even now;
c)The time between R and the father would be unlikely to increase in the future; and
d)The mother will facilitate contact between R and the father.
I therefore make orders as sought by the mother to allow her to relocate with R, which provide for as much time between the father and R as it appears is realistically practicable in the circumstances of this case. I am confident that the mother would negotiate alternate contact arrangements with the father if the orders do not meet the practical needs of the parties in the future.
To the extent that the orders deal with the day to day care (orders 9 to 15) I am satisfied that they are in the best interest of R to ensure he has appropriate care arrangements when with the father.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Allison Le
Date: April 2010
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