Mother’s Relocation from North Queensland to Brisbane Considered in Disabled Child’s Best Interests

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.

The case of Wright & Watson [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.

In this case, the mother requested the Court’s permission to relocate with the children from North Queensland to Brisbane.  The father asked that the court make orders requiring the children remain in North Queensland.  A major issue in this case was that the parties’ youngest child was disabled.  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.

Background

The mother and father separated in June 2011.  They both lived in North Queensland.  The mother is the primary carer of the parties three children.  John was born in 2003, Sue was born in 2007 and Daisy was born in 2008.  Daisy has autism and is severely disabled.

The mother had the children in her care the vast majority of the time.  Due to Daisy’s disability the Court accepted that caring for Daisy’s is a full time job.  The mother claimed she was “at the end of her tether” in being able to look after the children.  As a result, the mother wished to relocate to  Brisbane where she claimed she would receive support in caring for Daisy from family members.

Mother’s Proposed Relocation

The primary grounds of the mother’s relocation request were the care requirements of Daisy; the lack of support from the father in caring for the children, and that the mother’s family in Brisbane could assist her to care for the children.

The Court received evidence from the mother’s family members including the maternal grandmother, mother, uncle, aunty, brother, niece and cousin.  The uncle claimed that he could assist with providing handyman services and assisting the mother generally.  The grandmother stated she could provide some assistance and would be available in emergencies.  The cousin stated she would be available to help with Daisy but that she also studied on a full time basis.  The aunt claimed that she would be available for ongoing assistance to the mother.

Current Parenting Arrangements

The mother discussed the circumstances of the children including that Daisy was very demanding and would have “melt downs”.  As a result of this, John and Sue received little attention.  John was a demanding child and as a result Sue received the least amount of attention.

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’ separation, the father had little involvement with the children.  The father’s 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’s special needs school.

The Court noted that the father had not sought the assistance of government or other services to assist with the care of Daisy nor assisted the mother in this regard.  The Court also noted that the father often called on other family members to look after the children when they were in his care.

The Court concluded that the father puts himself first over the parenting, behavioral and educational needs of the children.

 

Assessing the Mother’s Relocation Request

The court referred to the case of Lansa & Clovelly [2010] FamCA 80 at paragraphs 136 to 152 for guidance.  This requires that a court apply section 60CA of the Act which states that a child’s best interests is the paramount consideration when making parenting orders.  The court in Lansa & Clovelly stated that “parents of children each have, by the fact of parenthood alone, parental responsibility”.  Section 61B of the Act states that parental responsibility includes “all the duties, powers, responsibilities and authority” that the law provides to parents to parent children.

The Court also referred to the case of Heath & Hemming (No 2) [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 of the Act with the best interests of the child as the primary consideration.  A court should then consider section 60CC which provides guidance in determining what is in the best interests of a child; the primary considerations being:

  • a child has a meaningful relationship with both parents; and
  • the child be protected from physical or psychological harm.

The court determined in Heath & Hemming, that a court must consider both the current and previous parenting arrangements.  Further, the court must determine a child’s best interests while contrasting a parent’s right to choose where to live.

The Court then considered that case of Sigley v Evor [2011] FamCAFC 22 as to the determination of a meaningful relationship between a child and parent.  This included that:

  1. under section 60CC(2)(a) of the Act, the benefit of the child having a meaningful relationship should be considered at the time of the hearing;
  2. under section 60CC(3)(b) the existing relationship between a child and parents should be considered; and
  3. that the Act promotes a “meaningful relationship” but this need not be optimal.

In Sigley v Evor, the court determined that factors determining what is in a child’s best interests in a relocation case may include a parent’s:

  1. better economic prospects through employment;
  2. better housing and facilities; and
  3. enhanced economic circumstances through a provident partnership.

Conversely, limited employment opportunities or financial circumstances may be considered.

 

The Court’s Decision

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’s needs and determined that she was likely to receive more support and assistance in Brisbane and that relocation would be in her best interests.

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.  The rural location reduced the services available to the mother and placed her in hardship.  On the other hand, the father chose to live a liberal lifestyle and only had care of the children as it suited him.

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.

Based on these factors, the Court made orders that the mother be allowed to relocate from North Queensland to Brisbane.

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