DAUGHTER DOES NOT WANT TO GO BACK TO HER STRICT FATHER BECAUSE HE WON’T LET HER USE TIKTOK
Vancell & Wellen [2021] FCCA 1004 (13 April 2021)
This is a case where the mother has refused to return the child to the father even when there is evidence the child has been appropriately cared for by the father. The mother submits that the child has expressed a wish to remain with the mother.
Facts:
This is a parenting matter concerning X who has just turned twelve years old. X’s father lives in Darwin. X’s mother lives in Melbourne. The parents appear to have separated finally in approximately September 2015. Since 2014 X has lived with her father in Darwin. Both parents have re-partnered.
In December 2020, the father agreed for X to spend three weeks of the Christmas holidays in Melbourne with her mother. The mother did not return X. She refused to return her. The reason offered initially was that X had expressed a strong wish to now live in Melbourne.
The father made an application to this Court reasonably promptly. This is the urgent hearing of his application for an order for X to return to Darwin. The mother responded. She has made some mild criticisms of the father’s care, for example, that the child did not have clean underwear. The mother also alludes that the father’s home is unclean.
The father takes a view that access to social media is a clear factor. He is critical that there is evidence that the child has had access to a social media platform called TikTok which, according to him, is a social media platform with rules that make it not available to children younger than 13 years old.
Issue: Should the child be returned to the father?
Law:
- Family Law Act S.60CC
Analysis:
Very often it will be in the best interests of the child that the “status quo” arrangements apply. Of course the question then is – what is the status quo? The child has been in Melbourne since December 2020. It is now mid-April 2021. That is, arguably, the status quo. The child has lived with the father in Darwin since 2014. Arguably, this is also the status quo. This reveals some of the difficulties in approaching a question like this in terms of status quo. It is not particularly useful.
The child was well-cared for in Darwin by the father. She was appropriately housed, fed, and her welfare was appropriately cared for by her father.
Her father clearly has some reasonably strict views about access to social media. The court does not endorse or disapprove of those. They are simply something for him. It is clear enough that those views are not shared by the mother.
These factors may well be transitory factors influencing the child’s wishes. The child has just turned 13 years of age. Her wishes are to be given weight but are not determinative. The court can conclude that the child is well-cared for in Darwin.
The court has no concerns about the child’s care in Darwin. However, the situation in Melbourne, appears less clear. The court is less satisfied that it is in the child’s best interests that she remain in Melbourne until, in all probability, the end of the year. It might be that the child would be nearly 13 years of age then and her wishes would be given greater weight. It may well be that the outcome of the trial would be that she would go to Melbourne, if all other matters were equal. However, the court does not know what the outcome is going to be.
Conclusion: It is in the best interests of the child, having regard to all of the matters in section 60CC of the Act, that she returns to live in Darwin with her father pending trial.
