MOTHER WITH CANCER WANTS HER CHILD TO LIVE WITH HER AGAIN
Pembleton & Annesley [2021] FCCA 535 (12 May 2021)
This is a case where the mother was the child’s primary carer prior to her hospitalization with a life-threatening illness when the child was under 2. The child has lived primarily with the father since that time. The mother now seeks that the child lives with her again.
Facts:
X, aged 4, is the much loved child of Ms Pembleton (“the father”) and Ms Annesley (“the mother”). The mother was X’s primary carer for most of his life until she went into hospital with a life threatening illness when he was about 20 months old.
Currently, X lives with the father and spends time with the mother for four nights per fortnight, from 10:00 on Tuesday until 4:00pm on Thursday each week. The father proposes that this increase to five nights per fortnight until X commences school in 2022 and that the days change so that it be each alternate weekend from Friday to Monday and from 4:00pm on the following Wednesday until 4:00pm on Friday during school terms. He also proposes that X spend blocks of four nights with the mother in each of the Term 1, 2 and 3 school holidays.
The father proposes that once X commences school in 2022 he spend time with the mother each alternate weekend during school terms from Thursday to Monday and for half of the school holidays, with the time during the Christmas school holidays to be week about.
The mother was proposing a shared care arrangement, which would have seen X living with her from Monday to Thursday each week and with the father from Thursday to Monday. However at trial, her proposal was that X live with her and spend time with the father each alternate weekend from Friday to Monday during school terms and for half of the school holidays, with the time to be week about in the Christmas school holidays until X turned eight.
The mother said that her cancer was in remission, X had a strong bond with her and she was a competent parent and there was simply no reason why she should not resume her role as primary carer.
Issue: Should the court grant the orders sought by the mother?
Law:
- Family Law Act 1975 SS.60CC, 61DA, 65DAA
Analysis:
The first difficulty with the mother’s proposed final orders is that they would not result in X spending substantial and significant time with his father. Time on alternate weekends and for half of the school holidays is not substantial, nor is it significant as that term is defined in S.65DAA
In September 2019, the mother had been out of hospital for only five months. The family consultant observed her to struggle in managing X’s behavior and being responsive to him and the issue of whether she might again become too unwell to care for him was of greater moment at that time.
X had to endure a radical change to his living arrangements when the mother went into hospital and he adapted that change, but that is not a reason to make a further radical change when nothing in the evidence suggests that it is necessary to ensure X’s health and safety, to ensure that he receives proper parenting or to ensure that he has a strong relationship with both of his parents.
The court intends to make orders which will see X continuing to spend substantial and significant time with each of his parents and which do not see a radical change to the amount of time he spends with each of them.
The orders the father proposed do involve a change to the days and times X spends with the mother and this was on the basis that a change is needed to take account of the fact that X was due to commence school next year.
However, the court does not consider that it would be in the child’s best interests to make too many changes at the same time as he starts kindergarten. The court intends to order that the child spend time with mother each alternate week from after school Thursday until Friday morning but that this not commence until the beginning of Term 3 2022.
Conclusion: The child shall live with the father.
