Father Opposes Relocation of Mother with Child
Angeli & Farina [2022] FedCFamC1A 40 (24 March 2022)
The mother sought to relocate the child’s residence to City A, USA, whereas the father sought that the child remain in Australia. The father filed an appeal from final parenting orders permitting the child to relocate with the mother to the USA. The Court, in determining whether or not the primary judge erred.
Facts:
On 9 December 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders which allowed the parties’ 10 year old child, Z (“the child”) to live with his mother Ms Farina (“the mother”) in the United States of America (“USA”) and spend specified time with his father Mr Angeli (“the father”) either in the USA, Australia or elsewhere.
The father appeals from those orders. The mother and the Independent Children’s Lawyer (“the ICL”) both oppose the appeal. Since the parties' separation, the child has been in the primary care of the mother in Sydney and has spent time with the father there.
The mother sought to relocate the child’s residence to City A, whereas the father sought that the child remain in Australia, although both had similar proposals for the child to spend time with the other parent during school holidays. Neither parent was prepared to relocate to the other’s preferred location.
The parties were able to agree to share parental responsibility and for orders providing a communication regime with the other parent depending upon which parent the child lived with. On 15 December 2021, a stay of the orders permitting the child’s relocation was granted pending determination of the appeal, and the child presently remains living in Sydney.
The father’s Amended Notice of Appeal filed 31 January 2022 contends four grounds of appeal challenging the adequacy of the primary judge’s reasons, his asserted failure to take into account relevant facts, and the weight his Honour gave to certain matters. The father denied that he had ever been domestically violent to the mother, and hence contended that the aetiology of the mother’s mental health problems lay in her pre-existing vulnerabilities.
Issues:
I. Whether or not the primary judge failed to take into account relevant considerations.
II. Whether or not the primary judge failed to attribute appropriate weight to the evidence
Applicable law:
(b) justice is not seen to have been done.
Analysis:
The father says that the mother’s mental health presents a risk of harm to [the child], as well as being an obstacle to the facilitation of a long-distance relationship with him. The Independent Children’s Lawyer submitted, and the primary judge accepted that the mother’s recovery will certainly be slower and harder if [the child] is not with her. The fact that the mother’s mental health concerns are long-standing is a relevant consideration in assessing the likelihood of the mother’s mental health improving if she is permitted to relocate to City A with [the child].
The primary judge was impressed by the extent to which the mother had given detailed consideration to the practicalities of returning to live in City A, both for herself and [the child]. Moreover, Ms H also impressed the primary judge with her child-focused and grounded attitude, and her obvious love for the mother.
The primary judge was satisfied that any risk of harm to [the child] arising from his mother’s mental health is a manageable risk should he be permitted to relocate with her to City A because of the support system available there to both of them. As to family violence, the Court records that it found some of the mother’s evidence to be exaggerated as to some of the alleged facts, but not as to how she experienced the events in question, which clearly left her feeling demeaned and controlled. The clearest evidence in support of a finding of family violence is the father’s own admissions.
Conclusion:
The Court dismissed Appeal No. NAA 84 of 2021. Within 28 days, the appellant is to pay the respondent’s costs in the sum of $40,000. Within 28 days, the appellant is to pay the Independent Children’s Lawyer’s costs in the sum of $10,962.