Court Reverses Decision that children live with Father
The Full Court of the Family Court has confirmed a recent decision of a Federal Magistrate who decided that two children aged 8 and 5 should move from Port Macquarie, where they were living with their father, to Sydney so that they could live with their mother.
The parties began to live together in about 2001, married in 2006 and separated in 2010. The court found that during the relationship the father was a daily user of cannabis but had stopped using cannabis on separation.
In about 2007 the parties moved to Port Macquarie. The mother took on full time work and although the father did not immediately take up work the children were placed in childcare. The father later took up full time work and in about 2008 the paternal grandmother assisted with the care of the children while the parties worked.
After separation the court found that “despite the mother’s opposition” the parties agreed to an equal week about arrangement where the children lived equally with both parents. In November 2010 the mother was informed that the grandmother would no longer be looking after the children in the week in which they lived with her. The mother was required to put the children in child care.
In early 2011 the mother decided to move back to Sydney to live and made a successful application with her employer to transfer her employment. The mother’s proposed move to Sydney was opposed by the father. In July 2011 the parties consented to interim orders to continue the shared care arrangement but also provided that in the event she moved to Sydney the children would live with the father. After those orders were made the mother made enquiries about resuming her former employment in Port Macquarie but was told there were only part time positions available. She could not afford to remain in the Port Macquarie area and so moved to Sydney.
At the hearing the Federal Magistrate found that after separation when the mother moved to Sydney, the father remained “significantly dependent on his mother for assistance with the children’s daily lives”. It was noted that the father agreed that “the children have been distressed since the mother’s move”. The Federal Magistrate said:
“[The father] manipulated the mother’s removal from the family home, imposed on her a shared care arrangement that was inappropriate…secured with his mother the cessation of her assistance to the mother in relation to child care in circumstances where he clearly was aware that such a change disadvantaged the children emotionally and disadvantaged the mother financially and in terms of her isolation in the Port Macquarie area.”
The Federal Magistrate ordered that the children should live with their mother in Sydney. The father appealed the decision of the Federal Magistrate. In dismissing the appeal the Full Court said:
“The Federal Magistrate’s conclusion that the father’s capacity to care for the children was “problematic” was reached after his Honour considered a number of factors including the father’s manipulation of the mother’s circumstances, a manipulation that, in his Honour’s words, “ultimately led to the mother’s relocation to Sydney” including the withdrawal of his mother’s assistance to the mother with childcare.”