Top

Courts used “Contact” interchangeably with “spend time with” based on context

Relocation from Launceston to Melbourne allowed

In Abrahams & Rathbone [2013] FMCAfam 1 (9 January 2013) Roberts FM allowed the mother to relocate with a child born in 2008 from Launceston to Melbourne where her new partner worked. The parties were described as “two very competent and committed parents” (para 35). The mother offered significant contact between father and child in Tasmania, the mother offering to pay seventy-five (75) per cent of the child’s return air fares (an order was made to that effect).

Roberts FM made reference to terminology as to the use of the term “contact” in a parenting case, saying at paras 32-34:
“In a 2008 decision, FM Walters (as he then was) said:

‘Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.’
In both Carpenter & Lunn [[2008] FamCAFC 128] and Chappell & Chappell [[2008] FamCAFC 143] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:
‘ … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.’
In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I will use the word “contact” interchangeably with terms such as “spend time with” and “communicate with”.”

Roberts FM ultimately concluded (paras 95-100) as to the mother’s case for relocation:
“When she wrote the family report, Ms B recommended that the child ‘live with her mother in northern Tasmania’. However, with the passage of time between the writing of that report and with the provision of more information to her in the witness box, Ms B appeared to be more equivocal. When Mr Turnbull put it to her that, given what she had read, heard and had been put to her, relocation could be an outcome that is in the child’s best interests, she responded ‘It could be’. Immediately before that, she had observed that the outcome in relation to relocation is not obvious and that the matter is finely balanced.

In cases that are finely balanced, it may be just one criterion that becomes decisive in determining the outcome. In Taylor & Barker [[2007] FamCA 1246] the decisive criterion was the happiness and contentment of the child’s primary carer. The majority said this at paragraph 113:
‘It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case.’

In this case, the situation is very similar. The mother wishes to live with the man she loves in Melbourne and I conclude that she will be very unhappy if she is not allowed to do so. In that regard, I do not accept the submission made by the father’s counsel ‘that if the relocation were not permitted the mother would be inconvenienced’. The effect on her will be significantly greater than mere inconvenience. That much is clear from her evidence that she would not cope but would ‘do her best to work around it’.

The parties are in agreement that the child should continue to live predominantly with the mother, so any decision that makes the mother very unhappy about where she lives is likely to have a negative impact upon the child. This is a logical corollary to the evidence of Ms B about the mother’s happiness as set out at paragraph 77 above.
In Morgan & Miles [[2007] FamCA 1230], Boland J also said this:
‘This leads me to conclude that it is not distance per se which should be the determinative criteria (sic). In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.’

When I weigh up the relevant criteria in this matter, I conclude that it is in the child’s best interests to permit her to live in Melbourne with her mother on the basis that her meaningful relationship with her father is maintained by regular and frequent contact.”

, , , , , , , , , , , , , ,