FATHER SEEKS THE RETURN OF HIS CHILDREN SO THAT HE COULD SPEND EQUAL TIME WITH THEM
Eldridge & Eldridge [2017] FCCA 822 (21 March 2017)
This case involves an application of the father seeking orders that the children be return to live with him in Town G where he contends that the children should be living with both parents effectively on equal time basis.
Facts:
This is an interim decision with respect to parenting arrangements for X and Y. As a family, they had all lived in Town G together. And at final separation, when the mother left, she went down to where her family live in Town EE, New South Wales, with the intention of only going for a holiday or for some time out. But then upon realizing that her life was calmer there formed the view that she would not return.
So the father brings his application seeking orders that the children return to live in Town G. The father, through his initiating application, seeks interim orders that would have the children living with both parents effectively on an equal time basis.
The mother says that I if order that the children live in Town G, she will be returning to Town G. The practical difficulty and expense of the children spending time with both of their parents, the distance between Town G and Town EE is extraordinary. There would be no direct flights. The capacity for the father to get down there is hampered by financial constraints and also by just the time that it takes. The father has some family in New South Wales, but apparently they are probably about three hours away from the Town EE area and so that is not of any great assistance.
Issue: should the court grant the father’s application for the children to return to Town G so that they could spend equal time with their father?
Legal Basis:
- Morgan & Miles [2007] FamCA 1230
Analysis:
It would be in the children’s best interests for them to be able to have a meaningful relationship with both parents. But in the circumstances of this case, all of the other considerations point against the children spending regular time with the father. It really comes down to the fact that the court cannot be satisfied that it is feasible for the children to be living in Town G. The court is not satisfied that the mother has the capacity to implement an arrangement for the children spending time with the father. The court is not satisfied that the parents have the capacity to communicate with each other. The court is not satisfied that the children would be protected from physical or psychological harm if they were living in Town G and their mother was living in Town G. All of those matters override what would otherwise be in their best interests, that they spend regular time with both of their parents.
To be clear, the orders that the father sought in his initiating application are not in the children’s best interests. There is no evidence to suggest that these children, aged three and two, would have their best interests served by spending equal time with both of their parents, where they would be moving between homes no less than three times each and every week. There is no evidence to suggest that that was going to be either in their best interests or reasonably practicable, not least of which because of the difficulties with the parents’ capacities to communicate.
Conclusion: The children shall remain with the mother but spend time with the father as agreed between the parties.