CHEATING HUSBAND SEEKS COURT ORDER TO PREVENT THE MOTHER AND CHILD FROM RELOCATING AFTER TEMPORARILY ALLOWING THEM TO DO SO
Archibald & Kayser [2021] FCCA 982 (26 March 2021)
This is a parenting application where the father seeks an interim mandatory injunction for the mother to relocate to Darwin with the child. He also seeks for the mother and child to stay in Darwin, where he is. The father, in this case, previously consented to the mother’s relocation for a limited time period but alleged that the mother intends the relocation to be permanent.
Facts:
This is an interim parenting matter about X who is 19 months old. The parties formerly lived in Canberra and moved to the Northern Territory in September 2018 to follow the mother’s employment in the Employer D.
The parties separated in October 2020. The precipitating event was the father’s infidelity.
The father very reasonably acknowledged the mother’s distress and upset about what had happened and agreed that the mother could return to Canberra with X for a period to consider her position. The father would consider his position, remaining in Darwin, and they would then see what steps were necessary to be taken for them to get on with their lives.
Initially, the mother and X lived with the father’s mother in Canberra. She then said to the father that she was going to take out a lease and he approved.
In late December, the mother came back to Darwin bringing X with her. The mother’s intention of travelling to Darwin was for X to spend some time with his father. The mother expressed concerns that X may have been brought into contact with the person with whom the father had had some kind of relationship and she objected to that.
Issue: Should the interim mandatory injunction for the mother to relocate be approved?
Law:
- Family Law Act S.60CC
Analysis:
The primary factor to be given the greatest weight in determining the best interests of the child is the benefit of a relationship of the child with both his parents. If the mother continues to live in Canberra and the father continues to live in Darwin then the fact of the parties living far apart is likely to have a very significant negative impact on the child’s relationship with his father.
The period waiting for a trial does not appear to be significantly longer than the period the father was prepared to agree to the mother relocating to Canberra with the child. That is, approximately, June 2021.
In those circumstances, an order for the return of the mother to Darwin is not justified.
An interim order to return to Darwin is unduly and unreasonably disruptive to the mother’s life and, indirectly, X’s life. It is not in the child’s best interest to require the mother to return to Darwin on an interim basis.
Conclusion: The court declines to make the orders that the father seeks.