10 February 2015, by Taylor King Family Law Solicitors
It is not common for the residence of a child to be switched from one parent to the other, simply for the reason that it is not in the best interests of the child to make such a drastic change – a factor that is the court’s primary concern.
However, in the case of RS v SS a father obtained a residence order for his two sons after years of the mother obstructing contact.As is often the case in residence/contact disputes a new partner can cause problems. The mother in this case suspected that the father had started a new relationship prior to theirs ending; a fact that was denied by the father. The mother’s view had formed part of the reason which led to the difficulties in this case.
In his application to the court in 2012, 10 years after the problems had started, the father stated that he had never had regular contact, the mother had repeatedly breached court orders, used financial matters as a barrier to contact and the boys were under pressure from their mother and afraid to stand up to her. He was effectively only seeing his sons in the school holidays and he complained that their attendance at school was poor. He stated that he had been subjected to verbal abuse, uncontrollable rage and erratic behaviour from the mother. The father stated that he had made the application for a residence order because he could offer stability to the boys and that it was the only way the boys would have a relationship with him.
In the same month as the father’s application the mother had threatened the father with an injunction after he contacted her to ask about holiday contact. She had left voicemails, which were played out in court, threatening to cut off contact and leave the country if he did not pay backdated child maintenance.
In her judgment, Judge Harris stated that she preferred the evidence of the father and demonstrated a far better insight into the needs of his teenage and pre-teenage boys, for example, around issues of guidance and boundaries, than the mother. She also stated that the mother was a very angry and wilful woman whose hatred of the father was almost pathological. The mother had prioritised her own needs and feelings at the expense of the needs of her children.
A problem that arises following an order for transfer of residence is that of how it is to be facilitated. In the case mentioned above it was relatively simple, the children moved to their father’s house the following day, which happened to be Christmas Day. Another way this can be achieved, where the child/children have negative views about the new resident parent, is to have a temporary foster placement with the new resident parent having substantial contact, gradually moving to the child/children moving to live with them full time.