Theophane & Hunt (No 3)

This case involved parenting orders concerning a child born in September 2006. The dispute centred on the child's residence and parental responsibility, with the father seeking to relocate the child to Melbourne and the mother seeking the child's return to her care. The matter was heard by Benjamin J.

The court was required to determine several legal issues, including the likely effect of any changes in the child's circumstances, particularly the impact of separation from either parent or other significant persons. It also had to consider the practical difficulties and expenses associated with a child spending time with and communicating with a parent, and whether such difficulties would substantially affect the child's right to regular contact with both parents. Furthermore, the court needed to assess the capacity of each parent to provide for the child's needs, including emotional and intellectual needs, and consider the child's maturity, sex, lifestyle, background, and any other relevant characteristics.

Benjamin J's reasoning focused on the best interests of the child. The court was not satisfied that the father would facilitate and encourage a close relationship between the child and the mother and her broader family, noting the child's expressed distress at missing her mother and wider family, a concern the father appeared to lack insight into. The court also considered the significant arrears in child support owed by the father and the unlikelihood of him financially supporting contact if the child relocated to Melbourne, making meaningful contact difficult. While acknowledging the mother's recent mental health challenges, the court found that these could be managed and that, on balance, the mother demonstrated a better capacity to provide for the child's emotional, intellectual, and physical needs.

The court ordered the discharge of all previous parenting orders and restrained both parties from relocating the child's residence from the Far North Queensland area. As of 11 December 2011, the child was to live with the mother, who was granted sole parental responsibility for medical, educational, disciplinary, social development, sporting activities, and residence within Far North Queensland. Specific arrangements were detailed for the child's time with the father, including supervised time with the mother prior to 11 December 2011, and subsequent time with the father on alternate weekends and during school holidays. The orders also included provisions for family therapy, the mother's engagement with mental health services, supervision of the mother's care, and injunctions preventing the discussion of proceedings or adult issues with the child, as well as denigration of either parent. A Family Consultant was appointed to supervise compliance with the orders for two years.