At [45], the Court found:
“The allegations of family violence, together with the mother’s concern as to the father’s alcohol abuse were matters on which she relied to demonstrate that it would not be in the child’s best interests to live with the father and his Honour ignored a fundamental integer of the mother’s case which was that there was a risk to the child from being exposed to family violence. The orders she sought for time would however, provide for the maintenance of the child’s relationship with the father while he remained living with his mother. His Honour’s approach was erroneous in principle and to the facts.”In allowing the mother’s relocation with the child to her native Germany, McClelland DCJ held:
In finding the presumption of shared parental responsibility rebutted Young J observed:
[334] Perhaps of more significance the submission was that he wholly minimised, failed to understand and acknowledge and had no comprehension of the extent of his violent actions and abuse of the wife, and largely in the presence of the child, as most events occurred in the one bedroom apartment where the family resided until separation.
[335] I have found that the husband had intentionally lied on certain significant issues… I do not generally believe him on issues of violence.
[336] …there are areas where her evidence was likely exaggerated or misstated however on the issues of and relating to her role as a woman and wife, her husband’s attitude towards her, ownership of the P apartment, the first termination and his ownership of her and various levels of violence and mistreatment I do accept the wife’s evidence.
And in allowing the wife’s relocation to India:
[432] As I have found that the wife should have a sole parental responsibility order, the child should live with her and both in his circumstances and for the wife, her security, wellbeing, happiness and future life she should be therefore permitted to relocate to India with the child.
[433] The proposal for her to remain as a long term resident in Australia, in all of her current and likely future circumstances is inappropriate and would not lead to a better and more fulfilling life and upbringing for the child.In allowing the mother to relocate to Europe with the child in circumstances that the child and mother would be closer to both the child’s maternal and paternal extended family Duncanson J noted:
[151] Ms C reported as to the mother describing a "bleak" future in terms of continuing to reside in Australia. The mother spoke of isolation and the need for support. I consider that a move to Europe would be beneficial to R as he is likely to gain from his mother's security and happiness.
And held:
[182] There was family violence between the parties during their relationship and following separation. [listing incidents including pushing the mother into a glass window, which broke, being argumentative and aggressive towards the mother when he drank to excess, repeatedly accusing her of infidelity, monitoring the mother by installing a camera in their ensuite, stalking the mother and sending text messages saying he knew where she was, refusing to allow her to leave a hotel room with the child]
[192] The mother described herself as isolated, trapped and afraid.
Duncanson J found:
[217] The mother has acted protectively of R including through very difficult times. The father's mental health was unstable, the mother feared for her safety and that of R. She has been left traumatised. She feels isolated and strongly desires the support of family. Her desire to return to Europe to be with her family has not waned.
[218] Having weighed all the factors carefully, I conclude that the mother should have permission to relocate R to Europe. I consider this to be in R's best interests. I am mindful of the impact on R of a separation from the father. Their relationship is developing well and I am satisfied that their relationship can be maintained and continue to develop from a distance. Further, an order permitting the mother to return to Europe with R will be beneficial to her mental health and is likely to enhance her parenting of R. Her happiness is likely to impact positively upon him.In considering the need to protect the child from harm (in a case where the father’s Hague Convention application had prompted the mother’s consent to return to Australia pending the outcome of the FCWA proceedings), Thackray CJ noted:
[111] I find that the father’s abuse of the mother would have had an adverse impact on Samuel, both by being exposed to the abuse directly and by the impairment of the mother’s capacity to care for him to the extent of her ability. The mother did what she could to protect Samuel from the abuse, while at the same time trying to save her marriage. In my view, she was justified in removing Samuel from the home and then later keeping him in the UK where both she and Samuel would be safe.
[112} It is impossible to predict whether Samuel will be exposed to such abusive conduct by his father in the future. The difficulty with a person who is prepared to conduct himself in the way the father did in one relationship is that he may do so again in other relationships. In this regard it is noted that the father has recently commenced another relationship, although his girlfriend has not yet met Samuel and was not called as a witness. I draw no adverse inference about her not having been produced as a witness, but it remains a matter of concern whether the pattern of behaviour will be repeated.
In finding in favour of the mother’s application to relocate to the United Kingdom Thackray CJ noted:
[164] It is not the function of this Court to punish bad behaviour, but it is the function of this Court to deal with the consequences of it insofar as it impacts upon a child. Whilst it is an entirely unsatisfactory for Samuel to be removed from the company of a father who I consider has much to offer to him, the physical and emotional health of the child’s primary carer is a matter of the utmost importance.
[165] Whilst the outcome is difficult, it is also clear, namely that the mother should be permitted to return to her homeland to enjoy the company and support of her family while she seeks to recover from the abuse she has suffered.In allowing the mother’s uncontested application to relocate with the child from a regional Western Australian town to Perth, Duncanson J considered:
[43] There has been family violence between the parties as set out above. There continues to be family violence between the father and Ms D. The mother's sister was assaulted by a relative of the father. The maternal grandmother was assaulted by a relative of the father's partner. The mother was involved in an assault with a friend of the father. These incidents occurred in Regional Town A. The mother seeks to remove herself from that environment.
[44] L has been exposed to problems of excessive alcohol consumption and violence in Regional Town A. The mother also wishes to remove him from that environment.
And found:
In allowing the mother’s application to relocate overseas, Duncanson J considered the evidence of Dr Watts that child did not have the same deep attachment to the father as to the mother and noted:
[194] The parties' relationship was one characterised by severe family violence. The mother has been left traumatised, with a sense of entrapment aggravated by a financial dependency upon the father.
[200] Both parties have exposed S to family violence in the past. That would not be a cause for concern for S in the care of the mother in the future and provided she does not drink to excess, S will not be at risk in her care.
[201] The family violence perpetrated by the father upon the mother was severe and has left her psychologically damaged. S is not exposed to family violence in the care of the father at this time and provided he does not abuse alcohol and drugs, S will not be at risk in his care.
Duncanson J held:
