Mother Applies to relocate Due Extensive Abuse from Maternal and Paternal Families

Forges & Forges [2021] FCCA 1394 (22 June 2021)

The Mother applied for relocation with the parties' three children. She alleges that she has been sexually abused by her step-brother and physically and emotionally abused by her step-father growing up. The father, in seeking to dismiss the Application cites Rice v Asplund as there had been significant change in circumstances since the previous final order.

Facts:

The Paternal Grandfather and Maternal Grandmother married when the parties were children.  When the Mother was nine, she was sexually abused by her step-brother over a five year period.  The mother also alleged that the Respondent’s Father was very violent and using excessive physical force when disciplining her and the other children in the household.  The Father was also alleged to have physically assaulted the mother which led to the parties' separation in 2018. 

In 21 November 2019, final parenting orders by consent provided for the parties to have equal shared parental responsibility over X,Y, and Z who shall live with the Mother and spend time with the Father.  In August 2020 X, Y and Z informed the Father that the Mother was planning on relocating to City B.  The Mother told the Father's solicitors that she had not yet finalized relocating arrangements.  The Mother was put on notice that if she did not provide written assurance that she would not relocate with the children away from the City E area, then the Father would commence proceedings seeking an injunction to restrain the Mother from doing so.  The Father filed an Initiating Application on 24 November 2020 seeking orders that the Mother be restrained from relocating with the parties’ children X,Y, and Z, outside the City E area and that otherwise the final parenting consent orders made 21 November 2019 remain in full force and effect.

Issue:

Whether or not the Court should dismiss the Mother's application for relocation. 

Applicable law:

Family Law Act 1975 (Cth) - provides that the best interests of children should be considered in making Court orders. 

Rice v Asplund (1978) FamCA 84 - provides that a sufficient change of circumstance warrant a re-litigation. 

Analysis:

It is the husband’s submission that there have not been any significant changes to the circumstances of the parties which would warrant those orders being re-litigated.  The Mother argues that the principles set out in Rice v Asplund are applicable in this case as there has been a clear change of circumstances since the making of the November 2019 orders as the Mother has now formed a clear plan and seeks to relocate to City B. 

The Mother believes the only way for her to recover from the trauma of her past and heal so she can be the best parent she can be is to move away from City E so she is not constantly exposed to that trauma.

Conclusion:

The Court ordered that Father’s Rice v Asplund application dismissed. While continuous litigation over children is not in their best interests, there has been a sufficient change in circumstances to warrant the Mother's application being heard.  Mother's application for relocation is allowed.  The children are allowed to spend time with the Father on alternate weekends, half school holidays and special occasions.