FATHER SEEKS ORDERS FOR THE RETURN OF THE CHILDREN TO SYDNEY; MOTHER WISHES TO REMAIN IN BRISBANE, AND THE CHILDREN TO LIVE WITH HER
HEATLEY & HEATLEY
FAMILY COURT OF AUSTRALIA
[2020] FamCA 592
This case is an interim application that concerns two children, X aged four years and Y aged nineteen months.
FACTS:
During the parties’ relationship, they lived in Brisbane. They separated on 3 February 2020 when Mr. Heatley (the father) took up employment in Sydney, and Ms. Heatley (the mother) and the children remained in Brisbane.
The father instituted the proceedings seeking orders which would require the mother to return the children to Sydney, that the children live with and spend time with him, initially not overnight for a short period but then graduating to an equal time arrangement. The father alleged that the mother was suffering from mental health problems during their relationship. The mother had lived with some mental health instability. The father’s case that his geographical proximity to the children, and being in contact with them almost daily, has been an essential part of their protection and care arrangements.
On the other hand, the mother wished to remain in Brisbane and sought orders that the children live with her. Also, she sought that the father has time with them on any weekend in Brisbane and by audiovisual communication. She submitted that she was concerned about leaving her friends and supports in Brisbane, where she had lived for 11 years. She alleged that she agreed to move to Sydney because, with the sale of their house in Brisbane, she had nowhere to live; she felt pressured by the father and believed his promises of financial support until she could find work. Finally, the mother submitted that she learned that the father was living with his new partner and her children, and she was not willing to allow the children to spend overnight time with the father and his new partner.
The mother also sought an order transferring the proceedings to the Federal Circuit Court in Brisbane. If the Court were to determine that the children should live in Sydney, the parties agreed that the mother would live in Sydney with them. They also agreed that if the children were to return to Sydney, the proceedings would remain in Sydney, and if the children were to stay in Brisbane, the proceedings should be transferred to Brisbane.
ISSUE:
Whether or not the Court should grant the father’s application for an order that the mother and the children move to Sydney.
HELD:
It is agreed that the children have a close and loving relationship with both of their parents. It is also an accepted fact that the mother has always been and continues to be their primary carer.
The legislation requires that the Court prioritize the maintenance of a meaningful relationship between the children and the father, not an optimum one. The fact that the father’s relationship with the children, even though he moved to Sydney, remained meaningful, suggests that it can be maintained.
The fact that the children have maintained a loving and close relationship with their father, despite being separated from him, indicates the mother’s parenting ability and understanding of his importance in their lives and willingness to ensure that the relationship flourishes.
The Court did not see any need to protect the children from any risk of harm arising from the disputed allegations about the mother’s mental health. The fact that the father’s application is for the children to continue to live with the mother, although in Sydney, would appear to carry a concession that she has the better capacity to provide for their needs.
Based on the above premise, the Court ordered that the children remain living with the mother in Brisbane. As a consequence, the matter will be transferred to Brisbane.
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ANONYMOUS This may interest you.
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Cameron McKenzie Relocation matters are always difficult and turn on the best interests of the child(ren) when considering the competing proposals. Irrespective of the delinquent party failing to abide by orders and unilaterally relocating or simply relocating in absence of orders, these matters are almost always decided in favour of the primary carer unless the wishes of the child(ren) prevail. This is basic premise of Bondelmonte.
Without reading the decision it appears colourful to assume just because the father sought orders in the initially that the children live with the mother affirms that the mother is the better care provider, especially when the father was ultimately seeking an equal care arrangement. This raises the risk of both parties seeking to be the primary carer which may ultimately result in the court concluding that co-parenting is impossible and the court consequently making a non contact order against one parent. As opposed to a less adversarial approach and working towards transitioning into becoming an equal care provider and perhaps the primary care provider, particularly if the issue of a parent’s mental health (support by expert opinion) poses an unacceptable risk or affects their capacity to parent.
The concern is that cases like these incentivise parties to achieve tactical advantage by unilaterally relocating. This also applies to protection orders made without merit or being used to displace parenting orders. Personally the party seeking to relocate should not be allowed to relocate without the permission of the court.
The father now has the additional burden of travelling to Brisbane to attend to the matter and find new representation and also bear the costs associated with the new representation re-familiarising with the matter.