Keywords: Best interests of the child; relocation

In Timms & Payton [2015] FCCA 3324 (18 December 2015) Judge Altobelli heard the applicant mother’s request to relocate with the parties’ 11 year old daughter (“X”) from one location in New South Wales to another location in New South Wales “in excess of two hours drive south of where the family presently lives”. The mother also had a 17 year old child from another relationship.

The parents previously entered into consent orders which provided for: joint parental responsibility; the child to live with the mother; and for the father to spend alternate weekends and some school holiday time, subject to his roster. The father and the ICL opposed the proposed relocation, while the mother contended that she would relocate with or without the child.
According to the Court, the child X did not want to move, and was sad that her mother had purchased a property away from the area in which she has always lived. X wanted to complete her primary education at the primary school where she was currently attending. The father was committed to spending time with X if the relocation was permitted, but preferred that the mother not move. If the mother was to move, the father’s preference was for the child to live with him and continue attending her school as normal.
[8] 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.”
In citing the importance parenting cases of Goode [2006] FamCA 1346 and MRR v GR [2010] HCA 4,  the Court found that:

“ … The father’s candidature to become the primary carer for X was not a strong one.

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. …
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. … 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. …

While the Court was concerned about the mother’s statement that should would relocate regardless of whether or not the Court ordered that X go with her, and found that the father to be committed to X, it ultimately found that the mother remain the primary carer. According to the Court:

 

“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.”

The Court made interim orders facilitating the relocation, with the father to spend time with the child each alternate weekend with changeovers to occur at a nominated McDonald’s Restaurant.