Father Opposes Mother's Application for Relocation

Dias & Olford [2021] FCCA 1788 (6 August 2021)

Final orders were X and Y to live with their parents on a week-about arrangement. Seven days later, the mother informed the father of her change of residence.  The parties are in dispute over whether or not the current orders should continue.  The Court, in adjudicating this matter relied upon the views of a 12 year old child, the effect of separation of children, and the case of Rice & Asplund.

Facts:

The parties entered into a relationship in 2006 and separated on 2 November 2017.  X and Y presently live with their parents on a week-about arrangement pursuant to final orders made by consent on 20 June 2019.  The orders also provided for a cash payment to the mother from the father of over $335,000.  At that time both the parties lived in Suburb B. Within less than a week of those orders, the mother purchased a property in Town C. 

Such property was a substantial distance from Suburb B, where the parents were both living when the orders were made.  Seven days after those orders were made the mother sent a message to the father stating that she had a change of residence which compromised changeover in Suburb B and changing the child's school.  She seeks that the children now live predominantly with her and spend alternate weekends with their father, together with half school holidays.  She seeks to enrol the children at school in Town C, which is convenient for her. 

The father seeks that the current regime of time continue, but that in the alternative the children would live with him and spend the same amount of time with the mother as she proposes for him.

Issue:

Whether or not the current orders should continue. 

Applicable law:

Analysis:

The mother, unlike the father, had involved the children, more particularly X, in adult issues.  The children loved both parents but felt, to an extent, conflicted owing to their awareness of the parents’ mutual dislike.  Hence, the family report by Ms E recommended that the children live with the father and spend time with the mother over two weeks in a nine/five arrangement.  X had continually commented that she wanted to be settled in one home, especially because she was about to undertake secondary school in 2021.  X had been diagnosed with clinical anxiety. 

The orders necessarily involved a measure of compromise. It is correct to say that whatever reservations might be felt about Ms E’s report, the father was negotiating from a position where the report had recommended that the children spend the majority of their time with him. An equal shared care outcome was plainly a concession of a sort, at the very least. The mother’s underhand behaviour was plainly a decision made to suit her interests and one that paid no regard whatever to the best interests of the children. 

Conclusion: 

The Court ordered the mother's application to change the existing parenting arrangements filed on 9 December 2020 to be dismissed.