• Creevey Russell

Family Law : CONSIDERING A SEACHANGE? THINK CAREFULLY SAYS DOWNS & SEABRIDGE

In Downs & Seabridge [2016] FCCA 2102, the Federal Circuit Court considered a mother’s relocation with her two children to over 500km away from where they had lived, nearby to the father, without the father’s consent. The mother also sought that the father contribute $300 to her travel expenses in order for her to facilitate the father’s time with the children.

If you currently live in Brisbane, to relocate about 500km away might have you travelling between five and six hours to live in some of these locations:

  • Roma

  • Gladstone

  • Port Macquarie

  • Pilliga

The mother in Downs & Seabridge did not consider that the distance between her and the father would expose the children to significant travel. Despite her “lack of insight”, into the impact that travel would have, her attitude to the relocation, and her attempts to justify the move, the Court did not order that the mother have sole parental responsibility. Instead, the Court considered that equal shared parental responsibility was within the best interests of these children, so the Court the turned its mind to the issues of practical difficulty and expense incurred so as to facilitate the children’s contact with the father.

Where the presumption of equal shared parental responsibility is considered to be within the best interests of the child, the Court must also consider whether the child should spend equal time, or substantial and significant time with each parent.

In doing so, the Court gave credit to both parents, commenting on their proven ability to cope relatively well with the distance and travel time between both locations. There was found to have been no effect on the children’s relationship with their father so far. Despite this, equal time was not within the children’s best interests when the practical difficulties in this case were considered, so Orders were made that allowed for substantial and significant time with the father instead.

The father made no proposal as to his inability to contribute to the mother’s travel expenses, and his only opposition to that idea was that he sought Orders that she return to where she had previously lived. If she was ordered to return to where they had previously lived, the father was willing and able to provide financial assistance totalling $4,000. The Court found that if the father could make those contributions, he could instead contribute to the mother’s travel expenses. The Court feared that if it did not make that Order, it would become an excuse for the Mother not to facilitate the father’s time with the children.

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