Family Court Rules with Mum as Primary Caregiver And Allowed Her to Relocate to

Introduction

 In the case of  Warner [2016] FCCA 1887 (29 January 2016), the Court considered an interim application for relocation which was filed by the mother who was planning on moving from Sydney to Perth with her new partner, “with or without” her school age children.  The children had been primarily cared for by their mother since their father lived in Sydney but was involved in deployment overseas for at least two to three months a year for work. The father was opposed to the children moving to Perth and preferred they remain in Sydney with the mother.

Background

It was  clearly the view of the father that the children remain with the mother. The fact that the father had a preference that the children remain with their mother in Sydney shows the Court that the father has a sensible, proper and realistic approach to who the children should remain with. The children had always been cared for by their mother while the father pursued his career and financially supported the family. The Court recognised that the father can only purse his employment in Sydney. The mother’s partner is now pursuing his career, which is taking him to Perth.  The mother never contemplated for one moment the father would challenge her taking the children to Perth and the children all along believed they would move to Perth to be with their mother. The mother gave clear reasons for moving which were not malicious and all which were acceptable to the Court.

QUESTION AT HAND

 Was it more detrimental to these children to remain in Sydney under the care of their father without their mother or move to a new city with the adjustment of making new friends, a new school but still being under the care of their mother?

If they were to remain in Sydney under the care of their father full time, which has never occurred, he would also have needed the assistance of his parents due to the nature of his work. The children had never been cared for full time by their grandparents and the longest they had been with their father is 10 days. Allowing the children to move to Perth would cause the children to change schools, make new friends, miss out on usual activities and miss seeing their father. The mother had always been the children’s constant, their primary caregiver.

DECISION

 The children were said to be excited about moving to Perth with their mother, being something new. They will miss their friends and family as well as school. However, based on the evidence presented from the family consultant, the mother and the children’s point of view, NOT living with their mother would have a negative and potentially detrimental impact upon them. The mother had an impressive capacity when it comes to parenting her children and positively promoting their relationship with their father and extended family.

On an interim basis, the Court found there to be a significant risk to separate the children from the mother at this point.  The Court determined that the children shall be permitted to live/relocate to Perth with the mother pending the final determination of the Court.