Child's Best Interests at Stake: Court Weighs in on Relocation Debate Between Parents
One party lives in NSW and the other in Queensland. The Court, in determining whether the child should relocate with the respondent, considered the need for the child to have stability.
Facts:
X currently lives in Suburb E in the Region B with the applicant Mr Gilmartin (“the applicant”). The respondent Ms Oates (“the respondent) currently resides in Suburb F, Queensland. X spends time with the respondent mostly during school holidays. The applicant proposes orders that if the respondent returns to live in the Region B that X live with the respondent, or otherwise that X remain in his primary care. The respondent seeks orders for X to relocate to live with her in Queensland.
The applicant is aged 33 years. He is not X’s biological father but refers to himself as her psychological father. X has grown up believing the applicant is her father. The applicant has been in a relationship with his partner Ms G (“Ms G”) since 2015. They have a son H who was born in 2021.
The respondent is aged 29 years. She is X’s biological mother. The respondent has not re-partnered. She has a son from a previous relationship, J, aged ten years. J’s father, Mr K, lives in the Region B. The parties both grew up in the Region B but met on a dating site. They were never in a relationship but were involved in a one night stand in or about early 2013.
The respondent became pregnant with X around that time but says she was unable to locate the applicant until about nine months after X was born. The respondent’s case is that in or about June/July 2014 the applicant reached out to her when he saw her profile appear again on the same dating site and that she then told him he may be X’s father. The applicant’s case is that the respondent told him he was X’s father. He says he subsequently requested a DNA test, which was arranged by the respondent and that he was shown results confirming he was X’s father. The respondent denies any such test.
On 4 August 2020 the respondent unilaterally moved with X to Queensland without telling the applicant. It was only when the applicant rang X’s school on 5 August 2020 that he was told that both X and J had been “unenrolled”. The applicant consequently filed his application in these proceedings on 11 August 2020 seeking X be returned to the Region B. Orders were made on 18 August 2020 for the parties to have equal shared parental responsibility and for X to spend time with the respondent in Queensland.
Issue:
Whether or not the parties should have equal shared parental responsibility.
Applicable law:
Analysis:
The applicant started spending overnight time with X in a relatively short period of time after meeting her and began paying child support. It is further agreed that when X was about 18 months old his time increased to alternate weekends and seven nights in the school holidays. The respondent’s evidence was completely contradictory and as noted in the Family Report, the respondent could not offer an explanation as to why she accepted visits and child support if she doubted paternity. The police records produced in this case contain a summary of an incident on 23 November 2014.
In that summary the police record that the parties had undergone a medical examination which showed that the applicant was the biological father. Whilst the respondent denied she said this and suggested it came from the applicant, it corroborates that one of the parties, many years before any anticipated litigation, was asserting there had been a DNA test.
Conclusion:
All previous orders in relation to X, born in 2013 (“X”) are discharged. The applicant, Mr Gilmartin (“the applicant”) and the respondent, Ms Oates (“the respondent”) have equal shared parental responsibility for X. X should live with the applicant.
Case: Gilmartin & Oates [2022] FedCFamC2F 1553 (15 November 2022)
Judgment of: JUDGE JENKINS
Counsel for the Applicant: Mr Levick
Solicitor for the Applicant: Joplin Lawyers
Counsel for the Respondent: The Respondent appeared in person
Counsel for the Independent Children's Lawyer: Mr Willoughby
Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers
