·   ·  664 posts
  •  ·  3859 friends

MOTHER BUYS PROPERTY IN QUEENSLAND WHERE SHE SEEKS TO RELOCATE WITH HER CHILD

Balsam & Lackner (No.2) [2021] FCCA 585 (30 March 2021)

This is a parenting dispute where the mother is seeking to relocate her child to Queensland where she bought a property after an unsatisfactory conclusion of a bitter property proceeding. The father opposes the relocation contending that there will be a very significant risk to the child’s relationship with the father if relocation is permitted.

Facts:

The applicant-mother seeks to relocate to Queensland together with her child X born in 2011.  She has bought a property up there. The respondent-father opposes relocation and seeks an order that the mother not be permitted to relocate any greater distance than 50 kilometers from where she presently resides.

Counsel of the father submitted that X was nine and a half years old with ASD (Autism Spectrum Disorder). The father was concerned about the benefit of the relationship that he had with his son. Disruption to this routine would not be in X’s best interests and the mother’s proposal would not work. The father does not have the time or money to go to Queensland. Two nights per fortnight would reduce to one weekend each month. The father’s forthcoming salary was only going to be $65,000 and he has debts to repay. He will receive no help from his family and friends and each visit would cost him about $2000.

The mother’s position is about the best interests of X. The application for the order for her not to move more than 50 kilometers from her current home is typical of the father’s controlling behavior. The father’s family is close but they dislike the mother.  The mother was born in Country F and has no family here and is on her own.  She devotes herself to X and is his primary carer. This has been particularly the case since separation on January 2019.

Furthermore, the mother submits that the parties will manage the transition.  X needs security and the support of his parents and, in particular the mother.  X is with the mother 12 nights out of 14.  The financial circumstances are relevant.  The mother was shocked by the trial outcome and this led her to purchase in Queensland.  The mother is not doing this to terminate the relationship between X and the father. The father provides no financial support for X and has only just got a job.  The parties do not speak to each other.

Issue: Should the court grant the application for relocation filed by the mother?

Law:

Analysis:

While the court understands the mother’s desire to go to Queensland and get away from the father, it is not in X’s best interests.  X’s relationship with his father is one to which he is entitled pursuant to section 60CC(2) and it will simply not survive if relocation is permitted.  Notwithstanding all the other relevant considerations which, in the end, a proper application of the law to the facts of this case leads inexorably to the conclusion that the relocation cannot be permitted as being in X’s best interests.

The next matter however is the father’s desire to restrict the mother’s residence to 50 kilometers of his own.  The mother may well have to move some distance from where she presently is in order to get somewhere where she can afford to buy.  To preclude her from doing so is completely contraindicated.

The court is going to order that in the event the mother proposes to relocate any distance greater than 50 kilometers from where she lives, she gives the father not less than one months’ notice of her  intention to do so, so that the resultant inevitable dispute can be disposed of by the Court in due course.

Conclusion: The court orders that the mother is to give the father one month’s notice if she seeks to relocate more than 50 kilometers from her present residence. Otherwise, all extant applications are dismissed.

Comments (0)
Login or Join to comment.

FLAST

Close