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Children – unilaterally relocating mother with infant ordered to return – unacceptable risk of harm rejected

In Tandy & Eastman [2020] FCCA 541 (19 February 2020) Judge Young heard the father’s application for the return of a 20-month-old child (X) who was removed from Darwin to City B by the mother.

The mother moved to Darwin to live with the father in 2015. They married in 2017, X was born in 2018 and they separated in 2019. The mother was the child’s primary carer, although the father deposed that after separation he was spending “two or three nights a week with the child and some…times on the weekend” ([9]). The mother alleged family violence.
Judge Young said (from [23]):

“…[T]he mother has also annexed…SMS conversations between her and the father [in which] some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown. However, the language was not threatening.

[24] …I consider that the mother’s family violence claims are not particularly forceful or compelling. (…)

[24] While I accept that there have been unpleasant and distressing…verbal exchanges…I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.”

In ordering the mother to return with the child to Darwin, Judge Young concluded
(at [40]-[41]): “I do not propose to make time orders. I think it is appropriate that the parties discuss this themselves. But I would expect…that the child spend substantial and significant time with the father. Whether the material would justify an equal time arrangement…I am far from sure about: again I would expect the parties to discuss that. I don’t have any concluded view about that and I haven’t heard submissions.

…[T]here was some reference…to whether… the mother had a car, should she return to Darwin. …[I]f the mother is to return I expect her to be provided with a motor car, and a serviceable one at that.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

This story was originally published in Proctor June 2020.

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