FATHER ASSERTS THAT THERE WAS A NEW PARENTING AGREEMENT WHICH REQUIRES THE RETURN OF HIS CHILD TO HIM
Sidney & Allanson [2020] FCCA 3573 (8 December 2020)
In this case, the father alleges that the mother has unilaterally relocated the child after an agreement made between the parties in 2020 that the child shall live with him. The mother alleged that the 2016 parenting arrangements (that the child lives with her) should be followed.
Facts:
This is an interim application concerning a child, X, who is nine and a-half years old. Orders were made between the parties on January 2016. It would appear that the parents have equal shared parental responsibility for the child and that the child lives with the mother. There was provision for the mother to relocate to the Northern Territory in those orders.
The parties also agree that in about the middle of 2019 that X should go up to Darwin to live with his father. The parties disagree whether that was a permanent or a temporary arrangement
The mother proposed the child should live with the father and the father agreed. The mother says that she negotiated that through Ms C, who is the father’s partner. The agreement was that the child would live with the father and Ms B. So the child came to Darwin in mid-2019 and was enrolled in D School.
When the child came to spend time with her in August 2020, she unilaterally withheld the child and refused to return the child to the father. She then enrolled the child in F School in City B, where the child is still enrolled.
Before August 2020, the child was living with his father in Darwin for a little more than 12 months. The father, suggests, with reference to the Full Court case Goode & Goode [2006] FamCA 1346, that where a child is in a stable arrangement, that arrangement should not be disturbed by a unilateral relocation and he describes what happened here as a unilateral relocation. To some extent, it was a unilateral relocation, but in a context where there are existing current orders, made relatively recently at the beginning of 2016, that the child live with the mother.
Issue: Was there a clear and settled agreement that the child live with the father?
Held:
To some extent, it was a unilateral relocation, but there are already existing current orders, made relatively recently at the beginning of 2016, that the child live with the mother. The court does not think the situation is the same as Goode & Goode or the other cases that have been referred to which note the undesirability of disturbing settled arrangements at an interim hearing.
The court is not satisfied that there is or was a clear and settled arrangement for this child at the time that the mother refused to return him. The court thinks it reflects poorly on the mother that she acted as she did without discussion with the father, acting unilaterally by simply refusing to return the child. Even if the court accepts what she says, that is, that the arrangement was always temporary, the fact is that it had been extended for a considerable period, more than a year it would appear. It is difficult to see how it is in the child’s best interest that she should, without any discussion with the father, simply act unilaterally. As the court said, it reflects poorly on the mother.
Conclusion: The Court does not propose to make the order the father seeks for the child to be returned to him.
