Will the Court allow children of separated parents to relocate with their mothers?

by Andrew Lind on 1 June, 18

Relocation cases arise in circumstances where one parent wishes to move with their child(ren) and that move is opposed by the other parent. The move might be opposed because it makes it practically or financially more difficult for the other parent to see the child(ren) for example.

The Court will order a relocation only if it is in the best interests of the child to do so. The Court has indicated a willingness to allow children of separated parents to relocate with their mothers in the recent decisions of Wendland & Wendland [2017] FamCAFC 244 and Boyle & Zahur and Anor (No 2) [2017] FamCAFC 263.

Wendland & Wendland

In the case of Wendland & Wendland the mother had been employed by the Australian Defence Force (“the ADF”) for over 18 years. It had always been possible that she would be posted to another area although it was not known if, when or where she would be posted.

As the possibility of such a posting became more likely and imminent, the mother sought an order that she be permitted to take the child to live with her wherever she was posted.

The Court had to consider whether it would be in the best interests of the child to relocate to wherever the mother was posted. The primary judge noted that it could not be that every time the mother had a posting that litigation must ensue.

The primary judge ordered that the child be permitted to relocate to wherever within the Commonwealth of Australia the mother is posted by the ADF. The father appealed that order.

The best interests of the child remain the paramount consideration in relocation cases. A primary consideration in determining the best interests of the child is the benefit to the child of having a meaningful relationship with both parents.

The main argument of the father was that his relationship with the child would necessarily be diminished if the relocation was allowed.

On the issue of whether his relationship with the child would be diminished if relocation was allowed, the Full Court referred to the case of Godfrey & Sanders[1] in which it was said: “Even if the move results in the diminution of quality of the relationship, what the legislation aspires to is to promote a meaningful relationship, not an optimal relationship.”

The Full Court noted that there was little doubt that allowing the child to relocate would diminish the quality of the relationship between the father and the child. But the very core of the relationship would not change. That is, the relationship would still be meaningful even if it was not optimal.

This stood in direct contrast to the relationship between the mother and the child, which would change drastically if the mother were to leave the ADF. The Full Court heard that the mother came from a prejudiced upbringing. Through sheer willpower, she forged a career with the ADF to the extent that the ADF was now part of who she was. If the mother were to leave the ADF, it would change who the mother was. It was not simply a case of the mother facing unemployment and having to look for another job. It was actually changing the very being of who the mother was. Such a profound change in who the mother was would also result in a profound change for the child.

The Full Court confirmed that the best interests of the child were served by maintaining her relationship with the mother as a member of the ADF. The child was permitted to relocate with the mother. The appeal was dismissed.

Boyle & Zahur and Anor (No 2) [2017] FamCAFC 263

In the case of Boyle & Zahur and Anor (No 2) orders were made by consent by which the parties’ two girls lived with their mother and spend every alternate weekend and one night per week with their father.

The mother and the girls commenced residing with the mother’s new partner. The mother’s new partner was to be posted overseas for a period of between two and four years. The mother applied for orders that would permit the children to live with her and her new partner overseas for the period of his posting. The move was opposed by the father.

The primary judge refused to make orders facilitating the desired move. His Honour instead made orders continuing the existing arrangement. The mother appealed. She argued that the primary judge failed to take relevant considerations into account.

The two most important issues were:

  1. whether the children were reluctant to see their father; and
  2. the likely extent of harm to the relationship between the father and the children if the proposed relocation were to take place.

The Views of the Children

The primary judge acknowledged that the girls had expressed enthusiasm for the move. However, His Honour noted that it was far from clear that the girls fully appreciated the move both in terms of their connections and lives in Australia generally and more so in relation to their relationship with their father.

The Full Court considered the opinion of the family report writer. She opined that, having given the children the opportunity to express their wishes, it would be damaging to their sense of self-worth to dismiss their clearly expressed preferences. The Full Court noted that orders which are contrary to the expressly stated wishes of relatively mature children are not in the best interests of the children in this case.

Relationship Between the Children and their Father

The family report writer concluded that the girls have different relationships with each of their parents. They felt more emotionally safe and understood with their mother.

Each parent undermined the relationship of the girls with the other parent. The relationship between the parents was marked by bitter conflict.

The primary judge noted that if the relationship between the girls and their father was reliant on Skype and a single visit per year (as proposed by the mother), the relationship was likely to diminish further in the absence of support from the mother. The father would have nothing more than a marginal involvement in his daughters’ lives for the period of the posting. The primary judge considered that a face to face relationship between the father and the children was important.

The Full Court said (consistent with the observations of the family report writer) that there is no issue that the children should have a relationship with their father and that the reduction in face to face time was not ideal. But the task is to fashion orders which best meet the best interests of the children.

The appeal was allowed. The proceedings were remitted to the Family Court of Australia for rehearing.

The Court indicated a willingness to allow the children to relocate with their mothers in these two recent decisions. It was noted significantly in the latter decision that: “it must not be assumed that… the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing.”[2]

If you would like to find out more about child/ren relocation, please do not hesitate to contact our Business Development Team for an appointment with our Brisbane family lawyers.

This article was written by Brooke Nickerson & Emario Welgampola.

[1] [2007] FamCA 102 at [37]

[2] U &U (2002) 211 CLR 238 at [247] per Hayne J.

{ 2 comments… read them below or add one }

John Gilbank July 18, 2018 at 12:32 pm

Thank you, knowing this information, as a minister of religion, is very important.

Andrew Lind September 18, 2018 at 9:31 am

Hi John,

We’re glad it is of use to you. If you need any further information regarding family, please feel free to contact us.

Kind regards,
Heilala Tabete
Business Development Manager

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