Mother Appeals Orders Requiring Relocation
Pascall & Heath [2022] FedCFamC1A 28 (28 February 2022)
An order was made requiring the mother to live within a 30 kilometre radius of the father. The mother filed an appeal against such order. The Court, in determining whether or not to grant the appeal, assessed whether it was necessary to secure the best interests of the child.
Facts:
The mother asserts that the parties started living together in about May 2015, while the father asserts that it was approximately June 2016. The parties separated on a final basis in May 2018. Parenting orders were made by a judge of the Federal Circuit Court of Australia providing for the child to live with the mother and to spend time with the father on a two week cycle from Thursday after day care/preschool (or at 3.00 pm) to Saturday at 9.00 am and from Friday at 5.00 pm (or after day care/preschool) to Monday before day care/preschool (or at 9.00 am). Commencing on 9 March 2022, the time was to extend from Wednesday after day care/preschool (or at 5.00 pm) to the following Monday before day care/preschool (or at 9.00 am) each alternate week, until 26 January 2024, when the child would spend week about time with each parent.
The parents were to have equal shared parental responsibility subject to a number of other orders that constrained that order. First, the father was to have sole parental responsibility for decisions regarding the child’s health and education, but he was obliged, save for in the case of medical emergencies, to consult with the mother in accordance with the procedure set out in the orders. As to the choice of the child’s school, the orders provided for the mother to propose the names of three schools for the child by 1 August 2021, with the father to reply by 1 September 2021 choosing one of those schools or providing his reasons why he did not select one of those. The father was then to provide the mother a list of three schools proposed by him and the mother was to choose one of those.
A further order of significance in the appeal was an order requiring the mother to relocate herself and the child to within a 30 kilometre radius of the father’s residence and to remain there until the child turned 18 or completed high school studies. The mother, in filing an appeal, gave extensive evidence of family violence, including physical assaults as well as intimidating behaviour and coercive and controlling behaviour. The appeal was opposed by the father and by the Independent Children’s Lawyer (“ICL”).
Issue:
Whether or not the Court should grant the mother's appeal.
Applicable law:
Family Law Act 1975 (Cth) s 61DA - pursuant to which the primary judge has accepted that the family violence is of a sufficient degree so as to warrant the rebuttal of the presumption in favour of equal shared parental responsibility.
Family Law Act 1975 (Cth) ss 65DAC, 65DAE - provides that orders for parental responsibility provide for the person with that responsibility to make the decisions about major long-term issues in relation to the child.
Analysis:
The submissions were that the primary judge erred because whoever had the primary care of the child should have sole parental responsibility for her; and the family violence spoke against the father having sole parental responsibility. At first blush, there is some force in the submission that it is somewhat counterintuitive that the person who has the primary care of the child should not have the ability to make decisions in relation to major long-term issues. However, the structure of the orders is such that from 9 March 2022 the child will be spending six days a fortnight during school terms and half the holidays with the father and from 26 January 2024, there will be an equal time arrangement. It therefore cannot be said that the primary carer of the child will not have the sole parental responsibility, because essentially the primary care will be shared or very close to being shared from March this year.
There was no dispute that the mother had appropriately cared for the child and had appropriately engaged medical care when required. When the child was young she was diagnosed with a medical condition which required extensive surgery while the child was still very young. However, the difficulty for the mother having sole parental responsibility is that she did not inform the father of the impending operation, that it occurred or permit him to attend at the hospital when he found out that what had occurred. The mother proposed an order that the parties live not more than 70 kilometres from each other.
While the Court found that the father should be restrained from relocating his residence from the Brisbane suburb of Suburb Z and the mother by the start of next year will be ordered to relocate herself within a 30km radius of the father’s residence until the child turns 18 years of age, it is not immediately apparent how the order would promote stability. As to travel time, his Honour did not explain what was meant by that.
Conclusion:
Appeal No. NAA 17 of 2021 is allowed in part. The operation of Order 13(b) of the orders made on 7 July 2021 is stayed until determination of Appeal No. NOA 39 of 2021. The Application in an Appeal filed on 8 December 2021 is dismissed. Orders 7(b) and 7(c) made on 7 July 2021 are set aside and replaced with "the child spend time or communicate with each parent as agreed between the parents in writing and failing agreement". Order 13(b) made on 7 July 2021 is set aside and replaced with "the mother is to live within a 40 kilometre radius of the father’s residence in the Brisbane suburb of Suburb Z and the mother thereafter maintain a residence for herself or the child that is within a 40 kilometre radius of the father’s residence in the Brisbane suburb of Suburb Z, until the child turns 18 years of age, or completes her Year 12 high school studies, whichever occurs first." Order 29 made on 7 July 2021 is set aside.