Keywords: family law, parenting, child, relocation, special needs, autism, severely disabled, opposition, parenting capacity, best interest of the child, best interest of the children, s 60B, s 60CA, s 60CC, s 61DA Family Law Act.<\/p>\n\n\n\n
The case of Wright & Watson <\/em>[2016] FCAA 127 (11 March 2016) was a family law hearing in the Federal Circuit Court of Australia. The matter involved property and parenting. The parties settled property matters leaving the parenting matters to be determined by the Court.<\/p>\n\n\n\n In this case, the mother requested the Court\u2019s permission to relocate with the children from North Queensland to Brisbane.\u00a0 The father asked that the court make orders requiring the children to remain in North Queensland.\u00a0 A major issue, in this case, was that the parties\u2019 youngest child was disabled.\u00a0 The mother was the primary carer for the children and wanted to move to Brisbane to gain the support of family members who lived there.<\/p>\n\n\n\n Background<\/strong><\/p>\n\n\n\n The mother and father separated in June 2011.\u00a0 They both lived in North Queensland.\u00a0 The mother is the primary carer of the party’s three children.\u00a0 John was born in 2003, Sue was born in 2007, and Daisy was born in 2008.\u00a0 Daisy has autism and is severely disabled.<\/p>\n\n\n\n The mother had the children in her care the vast majority of the time.\u00a0 Due to Daisy\u2019s disability, the Court accepted that caring for Daisy is a full-time job.\u00a0 The mother claimed she was \u201cat the end of her tether\u201d in being able to look after the children.\u00a0 As a result, the mother wished to relocate to \u00a0Brisbane where she claimed she would receive support in caring for Daisy from family members.<\/p>\n\n\n\n Mother\u2019s Proposed Relocation<\/strong><\/p>\n\n\n\n The primary grounds of the mother\u2019s relocation request were the care requirements of Daisy; the lack of support from the father in caring for the children, and that the mother\u2019s family in Brisbane could assist her to care for the children.<\/p>\n\n\n\n The Court received evidence from the mother\u2019s family members including the maternal grandmother, mother, uncle, aunty, brother, niece, and cousin.\u00a0 The uncle claimed that he could assist with providing handyman services and assisting the mother generally.\u00a0 The grandmother stated she could provide some assistance and would be available in emergencies. \u00a0The cousin stated she would be available to help with Daisy but that she also studied on a full-time basis.\u00a0 The aunt claimed that she would be available for ongoing assistance to the mother.<\/p>\n\n\n\n Current Parenting Arrangements<\/strong><\/p>\n\n\n\n The mother discussed the circumstances of the children including that Daisy was very demanding and would have \u201cmeltdowns\u201d.\u00a0 As a result of this, John and Sue received little attention.\u00a0 John was a demanding child and as a result, Sue received the least amount of attention.<\/p>\n\n\n\n The father, through his own admission, favoured John over the other children and would often do activities with John while excluding the girls. After the parties\u2019 separation, the father had little involvement with the children. The father\u2019s only attempt to have greater contact with the children was when proceedings were commenced by the mother. The father used excuses as to why he did not want more contact with the children including due to an incident at Daisy\u2019s special needs school.<\/p>\n\n\n\n The Court noted that the father had not sought the assistance of the government or other services to assist with the care of Daisy nor assisted the mother in this regard.\u00a0 The Court also noted that the father often called on other family members to look after the children when they were in his care.<\/p>\n\n\n\n The Court concluded that the father puts himself first over the parenting, behavioral and educational needs of the children.<\/p>\n\n\n\n Assessing the Mother\u2019s Relocation Request<\/strong><\/p>\n\n\n\n The court referred to the case of Lansa & Clovelly<\/em> [2010] FamCA 80 at paragraphs 136 to 152 for guidance. This requires that a court apply section 60CA<\/em> of the Act which states that a child\u2019s best interests is the paramount consideration when making parenting orders. The court in Lansa & Clovelly<\/em> stated that \u201cparents of children each have, by the fact of parenthood alone, parental responsibility\u201d. Section 61B<\/em> of the Act states that parental responsibility includes \u201call the duties, powers, responsibilities and authority\u201d that the law provides to parents to parent children.<\/p>\n\n\n\n The Court also referred to the case of Heath & Hemming (No 2)<\/em> [2011] FamCA 749. This case discussed the law regarding relocating parents in parenting matters. According to the case, a court must consider relocation matters under section 60CA<\/em> of the Act with the best interests of the child as the primary consideration. A court should then consider section 60CC<\/em> which provides guidance in determining what is in the best interests of a child; the primary considerations being:<\/p>\n\n\n\n The court determined in Heath & Hemming<\/em>, that a court must consider both the current and previous parenting arrangements. Further, the court must determine a child\u2019s best interests while contrasting a parent\u2019s right to choose where to live.<\/p>\n\n\n\n The Court then considered the case of Sigley v Evor<\/em> [2011] FamCAFC 22 as to the determination of a meaningful relationship between a child and parent.\u00a0 This included that:<\/p>\n\n\n\n In Sigley v Evor<\/em>, the court determined that factors determining what is in a child\u2019s best interests in a relocation case may include a parent\u2019s:<\/p>\n\n\n\n Conversely, limited employment opportunities or financial circumstances may be considered.<\/p>\n\n\n\n The Court\u2019s Decision<\/strong><\/p>\n\n\n\n In determining this matter, the Court stated that each child needed to be considered separately. The Court determined that John did not want to move and it would be a detriment for him to move away from the father. The Court considered that Sue received little attention from both parents due to the special needs of Daisy and the father favouring John. The Court considered it would be in the best interests of Sue to allow the relocation. The Court considered Daisy\u2019s needs and determined that she was likely to receive more support and assistance in Brisbane and that relocation would be in her best interests.<\/p>\n\n\n\n In determining the matter, the Court considered that the mother lived in a rural location and was struggling to cope with providing care of the children especially as one child has a severe disability.\u00a0 The rural location reduced the services available to the mother and placed her in hardship.\u00a0 On the other hand, the father chose to live a liberal lifestyle and only had the care of the children as it suited him.<\/p>\n\n\n\n The Court considered that if the mother was allowed to relocate to Brisbane, it was highly likely that she would receive support from family members. It was likely that this support would result in the children receiving more attention from the mother and that all the children would enjoy better support overall. This was in the best interests of the children.<\/p>\n\n\n\n Based on these factors, the Court made orders that the mother is allowed to relocate from North Queensland to Brisbane.<\/p>\n","protected":false},"excerpt":{"rendered":" Keywords: family law, parenting, child, relocation, special needs, autism, severely disabled, opposition, parenting capacity, best interest of the child, best interest of the children, s…<\/p>\n","protected":false},"author":1,"featured_media":565,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[49,60],"tags":[],"yoast_head":"\n