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Children – unilateral relocation – interim return of children to mother…

…paucity of evidence of father’s work hours indicative of children being in paternal grandparents’ primary care

In Leandra & Randles [2021] FedCFamC1A 51 (5 November 2021), Ainslie-Wallace J heard a mother’s appeal against interim parenting orders providing for six and three-year-old children to live with the father in ‘Town D’.

The mother had unilaterally relocated with the children to ‘Suburb F’, two and a half hours away. Judge Terry ordered that the children return to live with the father.

As the appeal was allowed by consent, the parties asked the court to determine the interim parenting arrangements.

As to the father’s availability to care for the children, the court said (from [38]):

“… There was no challenge to the mother’s account of the father’s working pattern before they separated, that is, he would be away a week or perhaps more at a time.

(…)

[46] The mother’s evidence was that since the children have lived with the father they have in fact lived with their paternal grandparents …

(…)

[50] … The sum total of the father’s evidence about his hours of work is … opaque at best … The father’s failure to … give detailed evidence on this issue is inexplicable …”

The court concluded (from [80]):

“I am thus of the view that these children’s best interests are served by their being returned to their mother’s care pending the final hearing. … I am conscious that it will necessarily involve another move for these two very little children whose residence has already changed twice …  However … I am of the view that a return to the primary care of the mother will best serve the children’s best interests as opposed to stability in their present living arrangement.

[81] … [G]iven the paucity of evidence of the father’s working hours and the arrangements made for the children in his absence, it seems likely that children are more likely than not spending substantial time in their grandparents’ care …

[82] … I will order that within seven days of the date of these orders, the children be returned to the mother’s care…”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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