MOTHER WANTS HER CHILDREN TO RELOCATE WITH HER FROM VICTORIA TO WESTERN AUSTRALIA WHERE HER CURRENT HUSBAND HAS GOOD JOB OPPORTUNITY WITH GREAT PAY
Challenor & Healey [2021] FCCA 860 (29 April 2021)
This is a case where the mother seeks to relocate from Victoria to Western Australia with her children. The young children in this case expressed their approval of such relocation. The father and the independent children’s lawyer, on the other hand, oppose the relocation alleging that it is not in the best interest of the children to do so.
Facts:
This is a parenting dispute about the best interests of two children, X, born in 2008, and Y, born in 2010. The applicant mother wishes to move to Western Australia with the children, where her husband, Mr C, has been offered a very good job. It is a major move, given that she and Mr C presently live in Town D and have both lived in Victoria all their lives. She proposes that the children spend time with the father in school holidays, according to their wishes.
The respondent father, unsurprisingly perhaps, opposes the relocation application and seeks that the extant time regime, which has been in place since 2017, pursuant to which the children spend four nights a fortnight with him, continue. The Independent Children's Lawyer broadly supports the position of the father.
The application had been pressed on the basis of the children’s wishes and the mother had been steadfast about this. The Independent Children’s Lawyer is critical of this position as it is inappropriate given the age of the children and the conflict between the parents.
Issue: Should the court allow the children to relocate with their mother?
Law:
- Family Law Act 1975 S.60CC
Analysis:
The family report shows that the children do love their father and have a good and well-bonded relationship with him. They wish to promote it. They, nonetheless, tell the mother things that they think she wishes to hear.
The children have expressed fairly clear views in favor of relocation to but the court notes that X, in particular, felt that if relocation was not permitted her mother would be fine, disappointed but fine, and that Mr C would be obviously disappointed but “I think okay.”
It is perhaps sufficient to say, for these purposes, that the court shares entirely the family reporter’s reservations about the weight that should be granted to the children’s opinions. They have emerged because their mother and stepfather have, consciously or otherwise, strongly proposed the move to them. The children’s views should be given very little weight in these circumstances.
If the children go to Western Australia their relationship with their father will be qualitatively and quantitively changed.
The court accepts the submissions of the Independent Children’s Lawyer that the mother minimizes the father as a father. She is unable to disaggregate her own dislike of him from the children’s best interests. The children will lose their father at an age when it is all the more important to have the stability of their relationship with him in their lives. This may be particularly the case with Y who, at the age of 10, is likely to look more to his father for guidance.
The children will cease to have the relationship with their father or anything like it that they presently do have but, self-evidently, their relationships with extended family in Victoria would be very significantly impacted.
Conclusion: The court orders that the mother be restrained from relocating the children X born in 2008 and Y born in 2010 ("the children") residence outside of Victoria.