Mother’s Application For Relocation Granted Despite Objection From Daughter

In a recent Federal Circuit Court case Timms & Payton [2015] FCCA 3324, a mother was successful in her application to relocate with her 11 year old daughter despite the father, the Independent Child’s Lawyer and the 11 year old child opposing the proposed relocation.

The relocation was from one location in New South Wales to another in excess of two hours drive of where they were currently living.

The mother contended that she would relocate with or without her daughter.

The arrangements at the time of the interim hearing

At the time of the mother’s application, the parties were subject to parenting orders (entered into by consent of the parties) for joint parental responsibility and for the child to live with the mother and spend time with the father each alternate weekend. The child was also spending some holiday time with the father subject to his work roster which the court had considered to have worked reasonably well.

[7] ...[t]he uncontested observation of the Family Consultant is that X (“the child”) is settled in her current parenting arrangements and enjoys school, and prefers there be no significant change to her living arrangements, at this stage. She loves and is loyal to each off her parents. There are no indicators that she is aligned with either parent.

Child’s view

Of particular interest in this matter is that the child subject to the proposed parenting orders opposed the move. She in fact wanted to complete her primary education at the school she was currently attending and wanted to attend a local performing arts high school. She expressed that she was sad that her mother had purchased away from where she had always lived.

Outcome

The Court held at [8] that, “this is a difficult decision to make. X clearly doesn’t want to go. Her mother is committed to moving, in any event. The Father is committed to spending time with X, should relocation be permitted. However, his preference is that the mother not move with X, but that if she does, X should live with him and spend time with her mother.

[29] when all [the] considerations are weighed in the balance, it must be recognised that the decision could go either way” and “whilst the case is finally balanced, the Court believes that the least of the worst options is, in fact, X relocating with her mother.

The views of the child

The Court found at [23] that the strength of the child’s views is a strong factor contraindicating the making of an order that would allow her mother to relocate her. She doesn’t wish to move or to change schools. She is of an age where her views need to be listened to and, if possible, respected. However, all parties recognise that whilst the child’s views are certainly relevant, and probably an important consideration, it is not the only consideration that the Court must take into account.

[24] X appears to have a good relationship with both of her parents, but the evidence leaves the Court in no doubt that the Mother has historically been X’s primary carer. There have been times when the Father has cared for X for extended periods, including times when Y has been ill and her mother has had to attend to her. The reality is, however, that hitherto the Father’s time with X has been very much dependent on a coincidence of X’s availability and his being rostered off. ...The Father’s own evidence is that, if X came into his care, he would be dependent on the assistance of others to get her up each morning and off to school and care for her after school. He deposes to his present roster involving being on day shift for five school days a month and then on night shift for seven nights a month. He would be dependent on his nephew, aged 18, and a neighbour. The nature of X’s relationships with these people is unknown, but the reality of the Father’s proposal is that much of her daytoday care would, in fact, be delegated to others.

[21] In reality, this is not a case where the meaningful relationship that X has with either of her parents would be affected by any order that the Court makes. Whether X lives with her mother on (omitted), or with her father in (omitted), she will always enjoy a meaningful relationship with both of her parents, both of whom, it would seem, are ready, willing and able to continue to facilitate that relationship. This is not an issue that determines the present Application.

[25] The Mother’s proposal would bring about significant, and unwanted, change in X’s life, but at least she remains living with the person who has been her main carer. In reality, the alternative proposal of not permitting X to relocate with her mother presents significant change, albeit not necessarily change as to her environment. The impact of change for X if her father’s proposals to care for her were implemented, must not be underestimated. The reality is that, whatever the Court’s decision, X will face significant changes in her life.

[30] X’s father is an unknown quantity in terms of being a primary carer, and the proposals that he advances for caring for X whilst he is at work are highly problematic, to say the least. X’s views are, of course, important but in the circumstances of this case the Court decides that it is more important for her to continue to have the benefit of her mother as her primary carer, even if that means she cannot have what she wants. The important relationship that she has with her father will not be lost because of the frequency of the time that she will spend with her father.

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Source:

Timms & Payton [2015] FCCA 3324