The Court allowed the child to relocate with her mother

The Family Court had to decide whether to allow a mother to relocate with her child with the father opposing the relocation.

Timms & Payton [2015] FCCA 3324 (18 December 2015] is the case of a respondent Mother’s interim application to relocate with her 11-year-old daughter to a town in New South Wales which is two hours away from the residence of the father.

In August 2014, the parties were granted Consent Orders for them to have equal shared parental responsibility. The Consent Orders provided that the mother will be the primary carer of the child and thus will live with her while the child will spend regular time with the father.

In 2015, the father instituted an action in the Federal Circuit Court regarding his time spent with the child. Before the Final Hearing, the mother filed an interim application praying to the Court for an order to allow her to relocate with the child.

His Honour Judge Altobelli required a report from a Family Consultant and appointed an Independent Children’s Lawyer. The father and the Independent Children’s Lawyer objected to the relocation and instead proposed that the child lives with the father. If relocation will be granted, the father put forward to the Court that he be able to spend significant and substantial time with the child and facilitate half of the travel between the residences of the two parents.

Issues confronting the court

The child herself expressed strong wishes to remain in her current residence and that she finishes primary education at her current school. It was admitted by the Court that the wishes of the child was a strong factor to consider but the parties and the Independent Children’s Lawyer agreed that this is just one of the many factors that the Court will have to take into account.

In deciding the case, the Court found difficulty in the fact that the mother was adamant about the relocation. She had already indicated to the Court that despite any order she would be transferring to a new house by December 2015. The Court noted that the attitude exhibited by the mother showed that she prioritized her needs over those of the child. Despite the Court’s real concern over the mother’s attitude, the Court had to make a decision that is in the best interests of the child.

The decision of the court

After considering all the relevant factors, including the Court finding that relocation with the mother was the least of the worst options, the child was allowed to relocate with her mother. The mother’s application was therefore granted. Additional Orders were issued for the father to spend significant and substantial time with his daughter each alternate weekend and during the school holiday period, subject to the father’s employment roster.