Eldest children returned to the father after mother decides to move 1300km away permanently.

Unilateral relocation interstate for urgent medical treatment for mother who then decided to stay away permanently.
How devastating it is for the parent who find that the other parent decides to move without consent 1300km away and take the children. Don’t parents think of the impact separating children from the other parent has on them? Children are part of both mum and dad not mum or dad.

In Whiteside [2014] FCCA 818 (3 April 2014) Judge Neville considered an application of a mother to relocate the parties’ 4 children from a “thriving inland city” in NSW to a location in Queensland which was about 1,300 kilometres away (a 15½ hour drive). The parties had formerly lived in the Queensland location until 2010 and had family in the area (para 2). The children, aged 7, 6, 2 and 8 months, were “co-parented” in the NSW city for 12 months after separation under a parenting plan reached at family dispute resolution.

The mother moved temporarily to the Queensland location but then decided to stay there permanently, the Court saying (at para 23):

“ … the mother [deposed] … ‘Since returning and attending my [medical] appointment and Mr Whiteside having instituted proceedings, I have decided that I would like to return to (omitted) Queensland with the children permanently now.’ Without more, this would appear to be an unqualified confirmation that (a) the mother has relocated without the consent of the other parent and (b) … she only formed this definitive position after having moved to (omitted) Queensland.”

The mother said that her medical condition “related primarily to her thyroid and the removal of a tumour from it. However, because of a blood disorder the surgery she required could not be performed in [the NSW town] because there was not a haematologist available. The only centres that had the relevant medical expertise were Sydney, Melbourne and … (omitted) Queensland. Unsurprisingly, the Mother chose (omitted) Queensland because of the family support available to her”. (para 3).

The father sought orders that the mother and children return to NSW or that the three eldest children return to him, the 8 month baby remaining with the mother until her recovery was complete or sufficient for her return (para 4).

Judge Neville said (at para 56):

“The position of the mother is that (a) she has always been the children’s primary carer, (b) it would not be in the children’s best interests to separate any of them, (c) the circumstances of the case are such that it comes within Boland J’s observation in Morgan & Miles [[2007] FamCA 1230] of ‘emergency’ which would thereby take it out of the usual course of relocation being determined at a final hearing … The mother also seeks that a final hearing be expedited.”

Judge Neville said (from para 70):

“Significantly, at [88], Boland J commented (emphasis added):

‘It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S [[1998] FamCA 66] remain apt and relevant to determination of these cases.’

[71] Finally, at [91] and [92], the Court said (emphasis added):

‘ … it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.

92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.’

( … )

[73] I accept that the medical circumstances of the mother are such that her options for medical treatment were limited to Sydney, Melbourne and the (omitted) Queensland. To state the obvious, all three destinations posed/pose very significant logistical issues for the parenting of the four children involved. While understandable, the (omitted) Queensland option perhaps posed, and continues to pose, the greatest logistical issues for all, but most particularly for the father.

( … )

[77] … certainly from a medical perspective, the present matter can, in my view, quite readily come within Boland J’s exception to interim relocation hearings in ‘cases of emergency’. However, it is too early, in my view, to make any formal determination about, for example, if the mother could or should have (a) had her surgery in Sydney (in part because it is much closer to (omitted) New South Wales than is the (omitted) Queensland) and (b) left the children with the father (with the assistance of his mother). All such matters are best left for consideration at a final hearing.

[78] In my view, the principles set out by Boland J in Morgan & Miles at [79]-[81] must be followed here – to the degree that they can. ( … )

[79] On the facts here, it seems reasonably clear that there was, or has, never been any attempt by the parents to resolve the dispute. It would appear that the mother’s actions made such a course impossible. Further, the mother’s earlier statements, and those of her sister to the father about her return to (omitted) New South Wales after her recuperation from surgery have not allayed or ameliorated matters. In fact, they may have only made the resolution of the dispute much more difficult.

[80] By reference to the legislative pathway, the following considerations … seem to me relevant to making orders that are, on an interim basis, in the children’s best interests. ( … ) The Court must ultimately choose the least worst or negative of those options when determining, on the conflicted evidence and immense logistical difficulties now before the parties, the orders that are in the children’s best interests. In my view, the main considerations from the legislative pathway are as follows:

a) The mother has been the children’s primary carer. To the degree that her recovery allows, that situation will not change, save that she confirms that she requires … assistance from her family … ;

b) I accept that the father has been involved in the lives of the children, and he seeks to remain involved with them. … ;

c) The geographical and logistical issues now involved in the matter make regular time between the father and the children essentially impossible. This could have very severe consequences for the children’s relationship with their father;

d) The mother’s decision to remain permanently on the (omitted) Queensland is, on her own evidence, quite late breaking. Indeed, her lawyers and her sister confirmed in February that the mother had no intention to remain permanently on the (omitted) Queensland, and would remain there only until her medical matters were resolved, following which the mother would return to … New South Wales. These statements in writing to the father have proved to be representations that are now untrue. The current circumstances are untenable for all. In my view, they clearly place the father in an utterly fraught and, respectfully, unfair position – certainly on an interim basis. In every respect, the mother having moved, the result is that all travelling for the foreseeable future falls at the feet of the father;

e) Without attributing fault to anyone, it might even be said that the factual circumstances have conspired to place a gun at the head of the Court (and the father also) regarding the relocation application;

f) Although it may be somewhat academic at the moment, there is nothing, in my view, to warrant the rebutting of the presumption of equal shared parental responsibility under s 61DA. That order having been made, the issues of practicability make any order under s 65DAA, whether shared care or substantial and significant, utterly impractical or impossible;

g) Section 60CC(3)(d) is of particular concern here, which refers to the likely effect on the child of separation from either of the parents, or any other child. As has rightly been pointed out in submissions, there are proper concerns in relation to (i) the separation of the children from each other, (ii) the separation of the children from the mother, and (iii) the separation of the children from the father;

h) The practical difficulties and expense I have already noted or at least alluded to. The facts speak for themselves given the geographical distance between the parties;

i) Questions or issues of the capacity of the parents, and the attitude to the children and to the responsibilities of parenthood, must await a final hearing, particularly where there are competing claims made by each of the parents.

The Court made an interim order that the children live with the mother in Queensland but that the eldest two children live with the father upon the conclusion of the school term. The Court also made directions for a family report and an expedited hearing.

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