Relocation of Mother to Adelaide from Sydney allowed

In Chapa [2012] FMCAfam 1420 (18 December 2012) the mother unilaterally relocated from Sydney to Adelaide with two young children, alleging abuse of the children by the father and family violence on his part. The father alleged that the mother was mentally unstable (producing a suicide note written by her (paras 39-43)) and was guilty of child abuse.
After considering the likely effect of relocation on the children’s relationship with the father, Halligan FM concluded at paras 73-76:

“On the other hand, I am concerned about the potential adverse effect upon the mother and, through her upon the children, of ordering a relocation back to Sydney. The father’s case, as I say, is that the mother has difficulties. He has suggested an undisclosed mental condition and the evidence clearly demonstrates that she does have significant issues with anxiety. If the Court were to order the mother to return to Sydney, the Court would be ordering the mother to come back to a situation that she says she has fled in fear, leaving behind her family supports, and leaving behind the other support mechanisms that she has begun to engage with through the domestic violence service that she engaged with upon arriving in Adelaide in October.

As I say, the father’s own evidence is that the mother has difficulty making friends in Sydney. There is no other maternal family in Sydney. The father’s sister and the person described in the father’s case as [Y]’s godmother have previously, even on the mother’s admission, provided some limited support to the mother in the care of the children, but they are now clearly aligned with the father. They are witnesses in his case against the mother, and the mother has disputed extensive aspects of their evidence. To suggest that these people could remain supports for the mother is simply impractical.

In those circumstances, what I am asked to do in the father’s case and by the Independent Children’s Lawyer is to order the mother back into a situation where she would be separated from whatever support networks she has, where she clearly suffers and has been treated over some significant period of time, including with medication on prescription, for at least anxiety, and where the father says these matters impact adversely upon her ability to care for the children. To my mind, it becomes something of a self-fulfilling prophecy to accede to the application that the mother be required to return to Sydney. On the father’s own case, that would seem to be highly likely, if not designed, to compromise significantly the mother’s ability to parent these children, whether they are living with the father and spending time with her or primarily living with her and spending time with the father. That cannot be in these children’s best interests where, as I have said, I am satisfied the children would look to the mother as their primary carer and with whom they would have their primary bond. In my view, this is a very significant consideration in this particular case.

While it is the case that the children could spend more limited time with the father if they remain in Adelaide, nonetheless it is still practical for the children to be spending time with their father on a fortnightly basis. He has in the past, as I have indicated, when he was in Sydney and the family was in Adelaide, gone down on an alternate weekend basis and that apparently was seen by him at that time as an appropriate means of maintaining his involvement with his sons.”

It was ordered that the children live with the mother and the mother was permitted to remain living in Adelaide.

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