What happens when your children want to live with their other parent?
If you have seen the movie Home Alone 4, you may recall that Kevin McCallister decided to live with his father over the Christmas holidays, while his siblings remained with their mother. That all works when parents are in agreement but what would be the case if there had been a parenting order in place that provided for Kevin to live with his mother over that period and she had not agreed for him to stay with his father over those holidays?
In this article, we will discuss what happened where two of seven children decided to stay with their father against the mother’s wishes and Court orders.
In the matter of Renald & Renald (No. 2)  FamCAFC 133, an interim consent order made in April 2016 provided that seven children live with their mother and for all but one child (Y) to spend long weekends and part of some holidays with their father.
The orders did not provide for the father to spend time with the children during summer holidays but the mother agreed that some of them could stay with him from 8 January 2017 to 29 January 2017.
Three children, B, V and A stated with the father as agreed. However, the father returned only child A a day later than had been agreed.
The mother sought a recovery order for B and V filing on 31 January 2017 but a Family Law Magistrate declined to make the order, instead making orders to progress the action which had been commenced in 2015.
On appeal the Family Court of Australia considered that the Magistrate had failed to adequately consider (with appropriate weight) the evidence of the family report writer provided in reports that had been filed on 8 April 2016 and 17 January 2017 where both reports made recommendations for all of the children to remain in the Mother’s primary care.
The Court considered that the failure of the Magistrate to have any regard at all to the reports caused his discretion to miscarry.
The Magistrate had not considered at all the strength of the children’s wishes but had had regard to the fact that the children who had not been returned to the Mother had started at a new school in the place where the Father lived.
The Court was of the view that the second family report that had been delivered was particularly important in determining how to respond to the Father’s failure to return the two children. The report writer had specifically commented on the fears that some of the children had of the Father “taking” them, and noted that it was therefore important that the Father strictly comply with the times agreed for him to return the children to the Mother. However, the Father had disregarded that advice in determining to return the children late and then in failing to ensure that two of them were returned to the Mother at all.
The Court considered that the failure of the Magistrate to respond to that conduct on the part of the Father may effect the willingness of the other children to visit the Father, especially where some of their relationships with him were anyway difficult.
The Court found that the Magistrate’s failure to assess the likely strength of the children’s wishes in view of the reports and his failure to consider the effect on the other children of seeing their Father failing to observe the existing order constituted error.
The Court found further that the Magistrate had failed to take into account the impact of his refusal to make the recovery order whereas that order would have ensured that all of the children continued to live together. In refusing to make the recovery order, it was likely then that B and V would see their mother and siblings only infrequently.
That Magistrate had failed to carefully consider what arrangements were in the best interests of the children and was in error in having focused instead on wishes the children had expressed at the end of their holiday with the Father and the fact that they had been attending a new school for what was in any event a relatively short period.
The Court determined that B, who was about 15 years old at the time, would be allowed due to his age to stay with the Father if he wished to do so.
On the other hand, V who was 11 years of age at the time and A who was also then residing with the Father were required to be returned to the Mother.
Court’s WIllingness to Enforce Decisions
In the case, Justice Thackray (at ), said that “the Court is willing to enforce its Orders, and that parents should not take matters into their own hands where there is no evidence of risk.”
Is Your Situation Similar?
The law regarding parenting arrangements for children is complex. It could be that your relationship with your former partner is still amicable. However, it is important you do obtain legal advice so that you know the legal implications that apply to your situation.
We recommend you call LGM Family Law for a free phone consultation for up to 15 minutes with one of our experienced family lawyers.
We prefer to meet you in person but are happy to have a telephone consultation if this suits you. At an initial consultation, we will take some particulars from you so that we can provide you with advice about the likely outcome at family law for your particular circumstances and estimated costs if you wish to proceed further.