Father Appeals From Previous Parenting Orders

Jennings & Jennings [2022] FedCFamC1A 104 (12 July 2022)

The primary judge made orders permitting the mother to relocate the child’s residence to New Zealand.The father asserts that the primary judge failed to properly consider how the facts raised an unacceptable risk of harm to the child. The Court, in determining whether the appeal should be granted, relied upon Family Law Act 1975 (Cth).

Facts:

The parties commenced their relationship in 2011, were married in 2015, and finally separated in July 2018. Their child, X ("the child") was born in 2015 and is presently seven years old. The mother has another child to a previous relationship, Y, who is 13 years old, and who lives with the mother in New Zealand. Y’s father lives in Australia and spends time with her here during school holiday periods.

In July 2018, the mother relocated from Australia to New Zealand without the child.  It was not in dispute that at that time, she was the child’s primary attachment figure, although subsequently, the father assumed that role, as the child remained living with him in Australia. Thereafter the child had only spent time with the mother on four occasions up until the date of trial. At the time of trial, the mother lived in New Zealand with Y, together with her new partner and, on alternate weeks, that partner’s child to a previous relationship. 

The child had never met either the mother’s new partner or his child, nor visited New Zealand. The father sought final orders for the child to live with him in Australia, whereas the mother sought to relocate the child’s residence to New Zealand to live with her and his half-sister. On 16 December 2021, the primary judge delivered reasons for judgment which concluded that the child’s best interests would be served by him living with his mother and his sister in New Zealand, and spending time with his father in Australia during New Zealand school holidays. In conjunction with filing his Notice of Appeal, the father filed an application to stay the final orders pending the appeal.

On 7 March 2022, that application was dismissed and the child subsequently went into the mother’s care in New Zealand.

Issue:

Whether or not the father's appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) - makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Analysis:

The nature of the risk posed by the father is unexplained, particularly whether it comprised a risk of physical, psychological, or emotional harm to the child. No assessment of the likelihood of the father again engaging in family violence in the presence of the child was explicitly undertaken.

Even if the primary judge implicitly found that there was some real possibility of further family violence by the father in the future, the gravity of any harm to the child should such violence occur was not considered. No consideration of the mechanisms to mitigate such risks as may exist, so as to reduce them below being unacceptable, is apparent in the primary judge’s reasons.

Those deficiencies necessarily meant that there was no weighing of the precise risk posed by the father, against the risks to the child of again being removed from his primary attachment figure, and going to live in an unfamiliar household with two persons unknown to him, in a country of which he had no experience. 

Conclusion:

The Application in an Appeal filed on 29 April 2022 is dismissed. The appeal is allowed. The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

The mother and father have equal shared parental responsibility for the major long-term issues for child X. The child should live with the father. The child should spend time and communicate with the mother at all times as agreed in writing between the parents and failing agreement as set out in the orders.