FATHER HAS BEEN PREVENTING HIS CHILD TO SPEND TIME WITH THE MOTHER FOR OVER 10 WEEKS
Raithby & Moxham [2020] FCCA 1692 (26 May 2020)
This is a parenting case where the father repeatedly acted unilaterally by ceasing the child’s time with the mother for over 10 weeks alleging that the mother is not mentally stable.
Facts:
The matter before the Court relates to one child, X, born in 2015. This child is the son of the applicant-mother, Ms Raithby, and the respondent-father, Mr Moxham.
The current operative parenting order in relation to this child is dated 6 June 2019. By that order, the father had sole parental responsibility for the child. The mother’s time with the child was to increase progressively.
At the time of the making of the final parenting orders, it was within the contemplation of the parties that the mother would continue to attend upon her treating psychologist and her treating psychiatrist.
The mother sought an urgent listing because it was said that the father was not permitting the child to spend time with the mother. The immediate concern for the Court relates to the best interests of X, noting that he has not seen his mother for 10 weeks
The father maintains that time was suspended by him because he is considered that, essentially, the mother was not acting in a child-focussed manner and that she was acting irrationally.
Issue: Should the child be delivered to and spend time with the mother?
Law:
- Family Law Act 1975 SS.60CA, 60CC, 69ZL, 65DAA
Analysis:
The court does not have confidence that the father will continue to make the child available to spend time with the mother. Having said that, the court has to weigh that against the fact that, since June last year the father has been the primary carer. The court evidence that the mother’s mental health is in a good state. There’s no evidence of any mental illness, as stated by the psychiatrist, Dr F. The mother has reasonable accommodation. The mother has a good car.
For the best interests of this X, the court needs to put in place orders whereby he is spending significant time with his mother and significant time with his father, including overnight time. The court is not satisfied, on evidence that there is any reason whatsoever on an interim basis, why this boy should not be spending overnight time with his mother.
It seems that this boy has not seen his mother for 10 weeks, and it seems to that there should be a changeover immediately, and the child should move from the father’s residence to the mother’s residence as soon as possible and then, that there should be in place orders whereby he lives with both his mother and then his father, backwards and forwards.
Conclusion: That the father shall deliver the child X to the mother.
