At the time of the trial, the mother was aged 34 years and the father 35 years. They had commenced a relationship in 1991 and were married in 2000. In 2002, their daughter was born.
In early 2007, the parties moved from Sydney to North West Queensland on account of the father’s employment. In mid-August 2007 the parties separated, and at some point after that, the mother went back to Sydney with the child.
The father then commenced parenting proceedings in the Federal Magistrates Court and interim orders were made which provided for the return of the child to North West Queensland.
At the time of the trial both the mother and father were living in North West Queensland, with the child living with each parent on a week about basis.
The father sought that the parents have equal shared parental responsibility and that the child continue living with each parent on a week about basis. The mother also sought that the parents have equal shared parental responsibility, at least for “long term issues relating to the child”.
The mother’s primary proposal was that she be allowed to live with the child in Sydney, with the child to spend time with the father for specified periods during the year in either Brisbane or North West Queensland.
The mother’s second proposal was that she would remain in North West Queensland and the child would live primarily with her, but that the child spend time with the father on alternate weekends, one night after school every fortnight and half of school holidays.
The mother’s third proposal was that both she and the father would live in Sydney, with the child living primarily with the mother. Under this proposal, the child would spend time with the father on alternate weekends, one night after school every fortnight and half of school holidays.
His Honour’s orders provided for the child to remain in North West Queensland living week about with each parent, but that in the event the mother was not living in North West Queensland – then the child was to remain living there with the father (and spend agreed or “facilitated” time with the mother).
The first ground of appeal asserts that his Honour erred in failing to consider an arrangement whereby the parties could both live in or close to Sydney. This failure was said by counsel for the mother to be the basis of the appeal.
In an apparently similar vein, the second ground of appeal asserts that his Honour failed to give any adequate reasons why the father’s preferred choice of residential location was superior to that of the mother’s choice of residential location.
Further grounds assert that his Honour erred by failing to give any adequate weight to:
the financial status of the mother living in North West Queensland (Ground 3);
the emotional and physical isolation of the mother living in North West Queensland – or indeed any consideration to that matter (Grounds 4 and 5);
the mother’s concern about the possibility of the existence of lead poisoning in the North West Queensland area (Ground 7), with it also being asserted that it was not open to his Honour to make a finding that the mother’s stated concern about the possibility of the existence of lead poisoning in the North West Queensland area was not a genuinely felt concern (Ground 8).
Further grounds then assert that his Honour erred in:
making orders which had the effect of placing an imposition on the mother’s freedom of movement (Ground 6);
placing excess weight on his findings that members of the mother’s family held a negative attitude towards the father (Ground 9), with it also being asserted that it was not open to his Honour to make a finding that such a negative attitude would result in an almost automatic deterioration upon the child’s relationship with the father (Ground 10);
that he failed to adequately address the practical expenses of the child spending time and communicating with the father if he remained in North West Queensland and she lived with the mother in Sydney (Ground 11);
failing to give any adequate reasons to support the conclusion that the mother wholly lacked any real appreciation of the enormous financial drain that would be put upon her as well as the father in relation to the practical expenses of the child spending time and communicating with the father if he remained in North West Queensland, and she lived with her mother in Sydney (Ground 12).
Finally, there was a group of grounds (Grounds 13 to 21), which were described by counsel for the appellant mother as all relating to his Honour’s determination that the child should live on an equal time basis with each parent. These grounds asserted that his Honour failed to:
have regard to and articulate the matters specifically referred to in s 65DAA(5) of the Family Law Act 1975 (Cth) (“the Act”) (Ground 13);
give adequate reasons as to why an “equal time ‘live with’ arrangement” was practical (Ground 14);
take into account, or give adequate reasons, relating to the extent of the parties’ capacity to communicate (Grounds 15 and 16);
take into account the father’s lack of respect for the mother’s capacity to parent (Ground 17);
take into account, or give adequate reasons, in relation to the parties’ different approaches to parenting and in particular issues of education (Grounds 18 and 19);
take into account, or give adequate reasons, relating to the historical care arrangements, and in particular that the mother had been the child’s primary caregiver prior to separation (Grounds 20 and 21).
The Full Court noted that the trial judge both recognised that the father was not prepared to move to the Sydney area even if the child was living there, but also appeared to recognise that the father may have had some justification for his “somewhat dogmatic” response to any suggestion that he move from North West Queensland:
He was very determined, for example, to continue his employment in [North West
Queensland] to the extent of indicating even that if the child were to be living
with the mother in Sydney, that he would not consider alternative opportunities
for work in the same field that he was working in as at this time. The father
may have seemed somewhat dogmatic but I also gained the impression that there
was an overriding wish to further his career, not necessarily simply for his own
aggrandisement but also to ensure that he was able to provide for his family and
to ensure that, in particular, [the child’s] needs were met and properly
provided for. I was generally impressed with the father in relation to these
The Full Court stated:
Against this background, there would have been no point in his Honour’s
giving any consideration to a proposal whereby both parties would live in the
Sydney area. Decisions concerning the parenting arrangements for children are
hard enough (particularly under the current legislation) without requiring the
court to consider scenarios which one or both parties have expressly rejected.
The reasonableness of such a rejection may of course be relevant to the ultimate
parenting decision to be made. But his Honour was clearly satisfied of the
reasonableness of the father’s position in this case. Accordingly, the mother’s
first ground of appeal has no substance.
The mother’s second ground of
appeal asserts that his Honour erred in not providing reasons, or adequate
reasons, as to why the father’s preferred choice of residential location was
superior to the mother’s choice. According to the written submissions of the
mother’s counsel, this second ground of appeal is similar to the first, in that
this was a case in which the choice was between either the child living in North
West Queensland, where she had only resided for just over a year, or living in
Sydney, where she had lived for almost her first five years. It was also a case,
it was submitted, in which the family consultant had recommended proximity to
both parents with the actual location not being relevant (at least from the
consultant’s point of view).
If this second ground is directed to the
situation in which the choice between Sydney and North West Queensland was to be
made on the basis that both parents could, or would, live in either place, then
it is misconceived. This is because, as already explained in connection with
Ground One, the father was not prepared to leave North West Queensland for
Sydney, even if the child was in Sydney. Any suggestion of a need for a
comparison between the two places on the basis that both parents could be in
either place is therefore misconceived.
If this ground is concerned with a
choice between the child living on the one hand with one or both parents in
North West Queensland, or on the other hand with the mother only in Sydney,
considerations other than a comparison between the two places were of much
greater significance – notable considerations being the need to maintain the
child’s relationship with her father and the mother’s capacity to foster that
In support of this ground, counsel for the mother referred us to the
affidavit evidence of the mother concerning the grave financial situation which
she faced in North West Queensland (including her caravan-type accommodation,
which the father acknowledged was unsuitable for the child), and to the evidence
concerning her better employment prospects in Sydney.
It is true, as was
submitted by counsel for the mother, that his Honour’s only reference to this
important evidence from the mother was made at the very end of his reasons for
judgment, where in paragraph 118 and in the context of the “catchall” provision
of s 60CC(3)(m), his Honour referred in general terms only to there being “...
in [North West Queensland] ... of course ... also financial concerns and
considerations that arise”.
His Honour then went on in paragraph 119 and 120
to suggest – perhaps somewhat optimistically, it might be said – that once the
proceedings were concluded, the mother could “address both ... emotional and
financial issues”, and also to suggest that the father might provide additional
support to her.
While the mother’s evidence regarding her financial
circumstances in North West Queensland is concerning, and would ideally have
warranted some greater elaboration in his Honour’s reasons, it has to be
remembered that the challenge in this ground is one of weight only. Thus, given
the very great concerns expressed by his Honour about separating the child from
her father in light of his findings as to the attitude of the mother and her
family to the relationship between the father and the child, it must be
acknowledged that it is unlikely any greater weight which might have been given
to the mother’s financial predicament in North West Queensland, could ever have
outweighed his Honour’s concerns that the child should stay in close proximity
to her father.
Again it is important to remember in this particular context,
that his Honour was prepared to make an order (Order 8) that in the event that
the mother was not living in North West Queensland, the child would live with
her father. We are thus not persuaded that our interference with his Honour’s
decision would be justified on the basis of the apparently limited weight which
he gave to the mother’s financial situation in North West Queensland.
The Australian's commentary
Caroline Overington in an article in The Australian comments:
Wives who follow their husbands to remote corners of Australia in search of work
may find themselves stuck in their new home town, unable to leave with the
Ms Overington cited researcher Elspeth McInnes who asserted that women's rights to movement had been lost under the Family Law Act following the 2006 amendments.