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FLAST CASE SUMMARY: Timms & Payton 2015: Interim Relocation Orders

Timms & Payton [2015] FCCA 3324 (18 December 2015).

Facts:

  • Application for Mother and Child to relocate two hours south from Father.
  • There were current orders of joint parental responsibility, with the child residing with the Mother and spending time with the Father on weekends and holidays, this arrangement was working well.
  • Mother expressed to the Court that she was leaving town with or without the child.
  • Court acknowledges Mothers “worrying attitude” putting her needs before the child, and the reasons she gave to relocate were ‘hollow'
  • Child is 11 years of age, has strongly expressed the desire not to relocate, and wants to reside with the father and not change school.
  • The Father opposes the relocation and proposed the child reside with him should the mother relocate.
  • The Father needs outside help to rely on including a neighbour to look after the child due to the nature of his shift work, if the child were to remain with him.
  • The ICL opposed the child relocating.

Issue:

Should the mother be permitted to relocate with the child on an interim basis, and whether the alternative of the child remaining in the fathers’s care is in the best interest in the child.

Judgement:

The child is to relocate with the Mother.

The Court will always consider the best interest of the child as a paramount consideration as  opposed to the child’s wish. In this case both the Father and the child had strongly expressed their desire to remain with each other, however, the Mother has been the primary care giver and given the Father did not present a satisfactory care plan for the child due to the hours/nature of his employment, he could not guarantee routine and would have to rely on outside assistance for the mornings and afternoons. Had the Father presented an alternative satisfactory care arrangement his case would have been much stronger.

 

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