Relocation cases are difficult to determine. They commonly involve one parent who wishes to relocate with the child/ren to a place which would put considerable distance between the child/ren and the other parent. These cases are judged no differently to other cases involving parenting orders, in that the Court must be guided by the paramount consideration – the best interests of the children.
Understandably, the parent opposing relocation is placed in a difficult situation where their relationship with their children may become curtailed in a significant way. Their time may be reduced to, for example, merely school holiday periods throughout the year, with video communication available at other times. As well, the children’s relationships with family members may also suffer as a result of the relocation. Grandparents, relatives and other family members may see less of the child as a result of the parent’s relocation. Feelings of anger and resentment may be felt towards the relocating parent. After all, how could they be so heartless as to take the children away from their normal home?
However, the relocating parent is also in a difficult situation. They too have individual aspirations, goals and wishes for their life. They may want to pursue a new career in a different location, or materialise a recent romantic relationship. They might have family members or friends in the proposed location which will significantly assist them with parenting duties. As well, the place they once called home may not feel so any more and they may have become isolated as a result. Their mental health may very well be compromised from remaining where they are.
The presiding Judge has an unenviable role in these matters.
These relocation cases which involve a delicate balancing of several factors and, whichever way the pendulum swings, one thing is guaranteed: someone will be deeply dissatisfied.
Facts
This post concerns a relocation case of the kind described above.
It concerned the parenting arrangements for a child aged 9 at the time of trial. The parties’ lived in Canberra for most of their relationship and following separation the father was spending 6 nights out of a fortnight with the child. The mother had re-partnered with a man who lived in Northern Queensland and together they had a child who was aged 2 at the time of trial.
The mother now wanted to re-locate with the parties’ son to Queensland to be closer to her new partner. Together they would start their own family unit and she would leave her life in Canberra behind.
Competing Applications
The mother wanted orders which would: –
- See the parties equally sharing parental responsibility.
- Permit her to relocate to Northern Queensland so she could live with her new partner and their new child.
- See the child spend time the father during school holiday periods.
The father wanted orders which would: –
- See the parties equally sharing parental responsibility.
- Disallow the mother from relocating to Northern Queensland.
- Have the child spend 50/50 “week about” time with both parties in Canberra (assuming the mother’s relocation was barred) or, should the mother wish to relocate herself notwithstanding, for the child to live with him.
The Issue
The central issue was the mother’s proposed relocation to Northern Queensland.
The child had been living 6 nights out of a fortnight with his father. Should the mother’s relocation be permitted, there would be a significant change in the nature, extent and quality of the relationship between father and son.
The Court had to carefully balance a multitude of legal factors in arriving at their conclusion, which was ultimately that the mother should be permitted to relocate with the child.
A summary of the Court’s judgment and the key principles identified will be explored below.
Principles for relocation cases
The Court laid down the principles relevant to relocation cases which were identified in the case of A v A These were: –
- The best interests of the children are the paramount, but not the sole consideration. Rights of freedom of movement are not to be ignored.
- You don’t need show a compelling reason to relocate.
- The reasons for the relocating parent are only one of the matters to be considered and should not be dealt with as a separate issue.
- To identify the parties’ competing proposals and their advantages and disadvantages in terms of the children’s best interests.
- Identify which matters have greater weight and explain how the matters balance out.
These principles guide the Court alongside the overarching consideration in parenting matters, which is of course the best interests of the children.
The Father’s Appeal Contentions
As this was an appeal case, the Father had to succeed on the notion that the judge had made a legal error in his judgment. That the appeal Court may have arrived at a different decision was not enough. To prove this, the father argued that the Judge had failed to consider and evaluate –
- The likely effect of the child in being separated from his father and paternal grandparents.
- The likelihood of the mother’s new partner relocating himself to Canberra if the mother was barred from relocating.
- The nature and strength of the relationship between the child and his father and the paternal grandparents, and the effect on those relationships if the mother were permitted to relocate.
- That there was too much weight placed on the mother’s happiness/unhappiness.
How the Court determined the best interests factors
In assessing the best interests of the child, the Court found: –
- That the child could still have a meaningful relationship with the child even though it would be limited to face-to-face contact during school holiday periods.
- Regarding the child’s views, the fact the child did not express any objection to moving to North Queensland with his mother meant he viewed “with equanimity the prospect of his contact with his father and with his father’s family being confined to school holidays”.
- That the mother was the child’s primary attachment figure.
- That the mother had been supportive of facilitating the child’s relationship with the father.
- As other facts/circumstances, the mother‘s new partner as having sound reasons for not relocation to Canberra (i.e. because he had children to a previous relationship in Queensland), as well as the father not moving to Queensland (i.e. because he was a licensed builder with stable employment in Canberra).
How the father’s contentions were considered on Appeal
The child’s relationship with his father and paternal grandparents
The father contented that the Court improperly evaluated this aspect of the case, however the Appeal Court disagreed. Specifically, the Appeal Court found that:
- The Court did consider the strength of these relationships against the mother’s proposed relocation.
- The Court had said there was an “obvious significant advantage” of the child remaining in Canberra, namely that the father could continue to be involved in the child’s day-to-day life (e.g. school sport, extracurricular activities, school functions, assistance with homework).
- On balance however, the Court determined that the mother’s mental state (her happiness if she were permitted to relocate and unhappiness if she couldn’t) outweighed the above considerations.
That the Court should have made a finding on whether the mother’s new partner would move to Canberra
At trial, the father asked the Court to find whether or not the mother’s new partner would be willing to move to Canberra. After all, this would be useful information if the Court ultimately decided to prevent the mother from relocating. While the Court at trial identified the reasons why the mother’s new partner would not relocate – for example, the fact he had lived in Northern Queensland almost all his life, had stable work there, and that his children from a prior relationship lived there – it did not compel the mother’s new partner to answer this question as asked by the father.
The Appellate Court did not find any error in the trial Court’s approach. It held the view that to have taken this approach would have been to engage in a form of “social engineering”. While prior cases had inquired as to the relocating parents alternative plans if they couldn’t relocate (the case of U v U), the Appeal Court was not prepared to extend this to the partner’s of relocating parents.
That the Court placed too great (or undue) emphasis on the mother’s psychological state
As the title of this post suggests, the mother’s psychological state was a key factor in this case. The mother’s happiness/unhappiness actually came to be the determinative factor in permitting her relocation.
Support for this came from the following facts:
- That the mother wished to relocate to be with her new partner.
- That the mother had a new child with this new partner.
- That the mother wished to share in the joys of parenthood with her partner and become a family unit.
- That the mother had familial support in Queensland which was unavailable where she was in Canberra.
From these, the Court inferred that the mother would experience great happiness and satisfaction if she were permitted to relocate, while she would experience great unhappiness if she could not. The danger with the latter being that her unhappiness would detrimentally affect her parenting and perhaps the wellbeing of the child.
In the end, the Court held that the child’s best interests would best be met by the mother’s relocation to Queensland, given the prospect of her unhappiness if she were required to remain.
Significance of the case & the minority judgment
When I first read this case I remember feeling a little outraged. I felt that it was unfair to the father given his relationship with the child was on all accounts strong (he was spending 6 days per fortnight with the child and they shared a strong bond). Perhaps it wasn’t so much the fact the mother was permitted to relocate, as I do think it necessary to uphold an individual’s right to freedom of movement, but more so why she was permitted to do so.
The fact of the mother’s mental health – well, at least a speculation as to what it may be – was the determinative factor in her being permitted to relocate. There was no expert evidence admitted that went to the mother’s psychological state and, while there were some comments made by the family consultant during cross-examination which supported the proposition that the mother would be unhappy if she had to stay, I couldn’t help but think that the family consultant was compelled to say that in the context of a trial. I mean, of course someone would be unhappy if they didn’t get what they wanted, though for how long and to what degree would be questions left unanswered. It was not held that the mother had any pre-existing psychological ailments or otherwise which may be aggravated by any future despondency or unhappiness resulting from her relocation block.
As a result, I tended to side with the dissenting (minority) judgment of Faulks DCJ. Essentially, His Honour took issue with the pendulum swinging in this case towards the mother only because of her happiness (or unhappiness). In essence, it was the lack of proof of this fact that sat uneasy with him. As he said in his judgement: –
The Act does not prescribe parental “happiness” as such, as a factor in determining the best interests of a child. It could be said that the point is so obvious that it does not need legislative prescription. However, the happiness of one parent is not necessarily the happiness of the other and in relocation cases it would be rare for the two to coincide. It is possibly reasonable to infer that the unhappiness of one parent may impact on a child who is with that parent and even more so if the child is more closely associated with that parent or perhaps more closely attached to him or her. It may be that evidence in the form of an expert opinion based on observation and fact rather than conjecture may establish the veracity of such an inference in an appropriate case. It is another thing in my opinion to elevate an inference, not directly supported by evidence, to the conclusive factor in preferring the new family of the parent proposing to relocate to the relationship between the child and his or her other parent.
As mentioned at the start of this post, in litigation there will always be an unhappy party. One will not get what they want – that is a feature of our adversarial legal system. However, if we are going to use “happiness” as a benchmark to determining or guiding what constitutes a child’s best interests in a relocation case, absent sound evidence, something seems amiss. After all, as Judge Faulks opined in his minority judgement: –
“It is perhaps reasonable to infer as his Honour did that if a parent wishing to relocate has fallen in love with someone, and wants to share his or her life with that person and either shares having a child with that person or even wants to do so, that not being able to do so would make the person unhappy (indeed that is the conclusion their Honours the Chief Justice and Finn J reached). If that were enough it seems to me that there would be very few applications for relocation which would not succeed.”
Relocation cases are always difficult cases to prepare and determine.
If you are considering a relocation change in your life and need legal advice, feel free to get in contact with us at hello@fuenteslegal.com.au or for a no-obligation consultation on 0406 111 992.
