In Richards & Parsons  FamCAFC 74 (7 May 2013) the mother was twice assaulted by the father during a seven month cohabitation in Canberra. The father was in both cases charged, convicted and sentenced respectively to a good behaviour bond and to three months’ imprisonment whereupon the mother separated from him. A child was born soon after his release and for the next two years the amount of time the father spent with the child was “sporadic” (para 6). The mother then moved with the then two year old child and a new partner to Brisbane where he had employment, separating from him soon afterwards but remaining in Brisbane with the child.
For the first six months of her time in Brisbane the mother visited Canberra occasionally so as to allow contact between father and child, after which the father applied for an order that the child live with him. After another six months an interim order was made by Brewster FM requiring the mother to return to Canberra and for the child to live with her and spend supervised time with the father. A year later a final order was made by Brewster FM that the child live with the mother in Canberra and spend alternate weekends with the father.
The mother appealed to the Full Court (Finn, Coleman and Strickland JJ) on grounds (inter alia) that his Honour erred in rejecting the family consultant’s recommendation that the child be allowed to live with the mother in Brisbane; and that insufficient or no regard was had to the detrimental impact on the child resulting from the mother’s limited support in Canberra (including the absence of any child support from the father), to the greater likelihood of further violence and to the father’s six month delay after the mother’s relocation in issuing proceedings.
The Full Court dismissed his Honour’s rejection of the family consultant’s recommendation but (at para 45) said that it was “extremely concerned about certain of the matters raised in relation [the other grounds]”, concluding at paras 46-48:
“It is true that … his Honour can be seen to have had at least some regard to each of the factual matters raised [by those grounds] … Yet his Honour ultimately determined that all such matters were outweighed by the need for the child to develop and maintain an optimal relationship with the father and the difficulty of doing this if the child and the mother lived in Brisbane and the father in the Canberra area.
We of course recognise the limitations which authorities such as Gronow v Gronow (1979) 144 CLR 513 place on appellate interference with discretionary judgments on the basis only of matters of weight.
However, given the mother had been in Brisbane for a period of some months before the father commenced proceedings; the extreme violence which had characterised their relationship and which would always be likely to cast a shadow over any future dealings between them; the relative certainty of her housing arrangements in Brisbane compared to the uncertainty of such arrangements in the Canberra area; and the father’s lack of commitment to his child support obligations, we can only conclude that his Honour’s decision was, with respect, and in the words of Stephen J in Gronow (at 519), ‘plainly wrong’, and requires our intervention. Thus the appeal must be allowed.”