Court Permits Mother’s Unilateral Relocation and to have Sole Parental Responsibility

 

In the recent case of Ridley & Radford [2016] FCCA 3383 (20 December 2016), the father made an application with respect to his 6 year old child. The application was filed five days after the mother had relocated from Brisbane to North Queensland. In 2014, a family law court order had been made for shared parental responsibility by which the child was to primarily live with the mother and spend one week night and alternate weekends with the father.

The mother filed an application to receive sole parental responsibility and that the child should not be allowed to communicate with the father. The mother argued this was the advice of the Department of Communicates, Child Safety and Disability Services (“Department”) to ensure there was no contact between the child and the father. The father alleged that the mother conspired with the Department and was making false allegations so that she could move away. At the first court hearing, the Court ordered that the Department deliver its files pursuant to s 69ZW of the Family Law Act 1975 (Cth).

According to the files of the Department, on 31 August 2016 a Child Safety officer and a police officer visited the father’s home and advised the father that he was not permitted any contact with the child due to concerns of the child’s safety. The Department also advised the child’s school that they held concerns for the child’s safety and that the father was not allowed unsupervised time with the child.

On 13 September, the mother received a letter from the Department stating that they were worried that there was domestic violence in the home, including Mr Ridley attempting to strangle Mrs Ridley; and Mr Ridley yelling at Mrs Ridley in front of the child, X. The letter also stated that they believe X has suffered emotional harm due to X’s disclosures as X stated he has witnessed his father hit his stepmother many times.

The Father denied allegations of family violence in his home and alleged that he has been set up. He stated that the mother had worked for the Department and had arranged for these false allegations to be recorded so she could leave Brisbane. The mother denied conspiring with the officers of the Department.

The mother argued that the risk of harm issues were significant and that the court needed to give those issues greater than the father routinely spending time with the child,  pursuant to 60CC(2A) of the Act. Under the Act, the court is to give greater weight to the need to protect the child from physical and psychological harm.

The department documents stated that the child presented as fearful of the father. The Court did not have sufficient evidence of the extent of this alleged fear, or how best to manage it. The Court would have benefited from a full family report and sufficient evidence.

The Court considered the allegations of violence and the way in which the father failed to engage with the Department, and the nature of his correspondence with the child’s current school. The Court allowed the mother’s relocation to far north Queensland and suspended the orders for the child to spend time with the father. Also, that the mother relocated to seep support from her family in light of the domestic violence protection, the nature of the messages sent by the father to the mother and the manner the father has written to the child’s current school.

Justice Lapthorn dismissed the father’s recovery application and made an interim order that the mother have sole parental responsibility and the father to spend no time with nor communicate with the child. The case was referred back to the Family Court.

 

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