Father Applies for Change of Primary Care of Child Against Mother

Aitchison & Elkers [2021] FCCA 1472 (30 June 2021) 

Final parenting orders were made regarding child X.  The Mother is alleged to not have properly complied with time spending.  Father filed an initiating application to seek a change of primary care. 

Facts:

X has always lived with primarily with the mother since her parents’ had a short relationship which ended prior to her birth.  X has spent time with the father from the time that she was approximately 6 months of age as a consequence of court orders.  X’s parents appear to have been engaged in litigation over her parenting arrangements for the vast majority of X’s life.  Final orders have provided for the parents to share parental responsibility, for X to live with the mother, and for X to spend incrementally increasing time with the father.  However, X has not spent any meaningful time with the father nor communicated with him since approximately 15 January 2021. 

The father filed an initiating application seeking a change of primary care asserting that the mother has undermined and prevented his relationship with X.  Throughout the proceedings the court made orders for the parties to participate in a further two Child Dispute Conferences with a family consultant of the Court and for a Family Assessment Report to be prepared.  The Family Assessment Report recommended that the father’s time increase with X as X progressed in age.  The parties agree that the root cause of their present dispute is a trip that the father took X on to Queensland between 9 January 2021 and 15 January 2021 which the mother alleges to have scared off X. 

Issue:

Whether or not there should be primary change of care. 

Applicable law:

Family Law Act 1975(Cth) s 60CC - provides that the primary consideration in parenting orders both at interim or final hearing stage should be the best interests of the subject child. 

Analysis: 

While there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility, such presumption can be rebutted in certain circumstances, namely situations relating to abuse and/or family violence.

Given the position promoted by the mother, it is apparent that X has not been able to enjoy a meaningful relationship with both of her parents in recent times.  Her father deposes that X had informed the father that “she had received a grilling from her mother” when she returned home and that she felt “weird” as a consequence of the mother’s questioning.  However, despite the concerns regarding the mother's conduct, a wholesale change of primary care is inappropriate and not in X’s best interests.

Conclusion:

The Court concluded that the final orders shall be reinstated and that the parties are to obtain updated Family Assessment Report.  The Court ordered that the child X  live with the father from 5pm on 2 July 2021 until 5pm on Saturday 17 July 2021.  The mother should be restrained and an injunction is granted restraining the mother from attending at the child’s school during any period of time that the child is scheduled to be in the father’s care.  The parties are restrained and an injunction is granted restraining each of them from keeping X home from school on any scheduled school day.  The parties are ordered to do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court.