Parties Dispute Parental Responsibility
Sinclair & Sinclair [2022] FedCFamC2F 1376 (10 November 2022)
The parties are in dispute over what parenting orders should be made over their child. The Court, in adjudicating this dispute, assessed whether or not there is sufficient evidence before the Court on which to determine what parenting orders are in X’s best interests.
Facts
The parties met in Brisbane in 2005, married in 2007 and separated in September 2015. X was born in 2015. At the time of separation the parties were living in Brisbane. On or about 16 September 2015, being the date of separation, the mother unilaterally moved to Adelaide with X without notice to the father. The mother grew up in Adelaide and wished to return to her family who remained there.
In order to maintain a relationship with X, the father chose to also move to Adelaide. He obtained rental accommodation in Suburb P, a suburb of Adelaide and found employment in Suburb Q as an allied health worker. The parties were unable to agree to arrangements for X going forward and the father issued proceedings in the then Federal Circuit Court of Australia. On 27 February 2019 the parties agreed to final parenting orders (“the final consent orders”) which provided for a gradual build-up of time between the father and X. This was to eventually result in X living in a shared care arrangement as and from Term 4 2022.
In or about February 2019 the mother also commenced a relationship with Mr R, who lives and works on Region B. Mr R is 41 years old and has no children of his own. In February 2020 the mother emailed the father and indicated she wished to move to Region B. The father raised his concerns about this move with the mother by return email. On 9 March 2021 the mother again emailed the father in regard to moving to Region B. She advised that a property for rent in the town had been made available much earlier than she expected.
The mother proposed that X move with her to Region B but if they could not come to an agreement that X live with the father during the school term in Adelaide and spend time with the mother on alternate weekends and during school holiday periods. The father responded on 15 March 2021 indicating he preferred X to stay in Adelaide and that he would agree in principle to the mother caring for X on alternate weekends and school holidays. On 29 March 2021 the mother emailed the father and thanked him for agreeing to care for X during the school term and set out a regime for holiday time. However it would appear that the parties were unable to agree on the specifics of that holiday time, with the father seeking sufficient time so as to be able to take X to Queensland to visit his extended family.
The mother subsequently moved to Region B in April 2021. X continued to spend time with the parties pursuant to the final consent orders which at that time provided for X to spend time with the father in week one from Sunday to Friday and in week two from Thursday to Friday. The mother travelled back to spend time with X when she could, otherwise X lived with the mother’s extended family in Adelaide during the mother’s time. The mother says that X became distressed during the course of the following months and was not coping with this arrangement and consequently on 16 June 2021 the mother relocated X to Region B without notice to the father.
The mother also moved X from her school at J School in Suburb S, to the Region B School in Town T. The father consequently filed his application in this matter on 21 June 2021 seeking X be returned to Adelaide, that she live with him and recommence at her old school. The mother filed a Response seeking to be able to remain on Region B with X. Since that time X has spent term time with the father from approximately 10.30 am Saturday until mid to late afternoon Sunday each alternate weekend and for the majority of the term school holidays as well as more than half of the Christmas holidays.
X’s time was limited with the father to one overnight on alternate weekends due to the timing of the ferry between Region B and the mainland of South Australia and the father’s work. The parties were ordered to participate in a Child Impact Report which was prepared by Ms U and dated 11 May 2022. At a compliance and readiness hearing on 4 August 2022, the Court was advised that Ms U was not available to give evidence. It was determined that she would be available from 31 August 2022 and consequently the Trial was relisted to commence on 29 August 2022.
Issue
Whether or not there is sufficient evidence before the Court on which to determine what parenting orders are in X’s best interests.
Applicable law
Analysis
The mother's explanations as to why she needed to move to Region B made little sense. She denied moving there due to her relationship with Mr R and indeed on her own evidence appeared to have broken up with him at the time she did move. She gave various other explanations for the move, these included for her career, because X loved it there, because of housing and because of community support, all of which were somewhat unconvincing.
X’s best interests are met by returning to live in Adelaide. In the event the mother chooses to return to Adelaide it would be in X’s best interests to live in a shared care arrangement between the parties. If the mother chooses to stay on Region B, X should live with the father and spend alternate weekends with the mother. This should be Friday to Sunday if the mother is able to travel to collect X from Adelaide after she finishes school otherwise from Saturday morning to Sunday afternoon.
The mother seemed ambivalent about the concept of moving back to Adelaide. She said it would take her six months to save up for the move. In any event, it would be appropriate for X to see out the school year at her current school. This will also enable her mother to save to return, if she so chooses.
Conclusion
The final parenting orders made 27 February 2019 is discharged. The parties should have equal shared parental responsibility for the child X born in 2015 (“X”).
