Discretionary Trusts and Divorce: Are Trust Assets Available for Division?
March 16, 2017
Children’s Rights: Protecting the Child From Physical and Psychological Harm in Family Law Proceedings
March 18, 2017

International Relocation Family Law: Preserving the Child’s Relationships

International Relocation Family Law: Not a Special Category of Case

As pointed out in a previous blog post, relocation matters do not constitute a special category of case. Like any parenting matter, the court is required to undertake the same decision making process first identified in Goode and Goode (2006) FLC 93-286.

However, because of their nature, it would seem as though relocation matters engage certain best interest considerations more strongly than others. For instance, one issue that looms particularly large in most relocation matters is the child’s relationships – especially their relationship with the non-custodial parent.

Grella & Jamieson [2017] FamCAFC 21 (20 February 2017) is the most recent decision of the Full Court to examine the question of how a child’s relationships might be preserved in the context of an international relocation. In Grella, the appellant mother appealed the decision of the trial judge in dismissing her application in support of an order for an international relocation. The relocation related to a six year old child.

The mother was originally from Europe and had resided in Australia since the age of fourteen. Although she had tertiary qualifications obtained in Australia, she relied upon government benefits to support herself and the child. She was thirty-two years of age at the time of trial.

The father, on the other hand, had irregular employment as a tradesman, but had not been employed for most of his adult life. It was found that he had a history methamphetamine abuse and criminal behaviour. Some of the father’s criminal behaviour had been directed towards the mother in the form of property damage. This caused the trial judge to find that the presumption of equal shared parental responsibility should not apply because it would not be in the child’s best interests.

The child had lived with the mother after . Although the child spent time with the father, it was both sporadic and limited to supervised 2 hour visits at a contact centre. In November 2015, the father began having unsupervised time with the child. These arrangements ceased from December until January on account of the mother travelling with the child to Europe.

The father had commenced a relationship with a new partner, Ms F, in 2014. In 2015, the father and Ms F had a child together – a daughter. Shortly thereafter, the father began working in Sydney, and was in paid employment at the time of trial. Ms F and the father currently live with her family.
During the trial, the mother had led evidence to the effect that the child would benefit from having a relationship with the father. Although the mother had initially proposed supervised time, she eventually adopted the view that the unsupervised time would be more beneficial to the child. This view was re-affirmed during cross-examination of the mother.

International Relocation Family Law: How Much Weight Should be Attributed to the Child’s Relationships?

The basis of the mother’s appeal consisted in a number of vague, overlapping grounds. Each somewhat substantial ground, however, appeared to converge on the idea that the trial judge attributed excessive weight to the benefit of the child having a meaningful relationship with the father. This ground was supported by the following submissions:

  • in attributing weight to the child’s relationship with her father, the trial judge did not attribute sufficient weight other considerations;
  • by failing to attribute sufficient weight to other considerations, the trial judge failed to make appropriate factual findings related to those considerations; and
  • this failure amounted to an appealable error.
  • The mother supported these contentions by reference to the father’s history of substance abuse and previous criminal behaviour. These factors were considered relevant insofar as they related to the father’s parental capacity.

    This ground was dismissed on the basis that it did not constitute a proper ground of appeal. The mother’s submissions in support of this ground were so lacking in particulars that the court could not discern a substantial ground of appeal.

    In addressing the issue of whether the child’s relationships amounted to a reason to prevent the mother from relocated to Europe, the Full Court arrived at the following conclusion. Namely, that the child would probably fail to maintain a future relationship with both her half-sibling or the father. The significance of this finding was supported by the evidence of the family report writer, Mr H. In cross examination, Ms H indicated that children tend to have better life outcomes in all domains when they are able enjoy a positive relationship with both parents. When viewed in the context of the child failing to maintain future relationships with her father and half-sibling, it becomes apparent that relocating to Europe would be adverse to the child’s best interests. This finding was supported by the fact that the child was of relatively young age and had benefitted from unsupervised time with the father. Moreover, while it was accepted that the father had previously engaged in anti-social behaviour, there was no evidence to suggest that it had recently occurred or was likely to occur in the future.

    International Relocation Family Law: The Best Interest Considerations

    While the mother’s case was significantly undermined by her inability to form cogent submissions, Grella nonetheless provides some insight into role that particular best interest considerations play in a relocation case. For instance, it apparent from the Full Court’s decision that the benefit to the child of having a meaningful relationship with both parents was the pre-eminent consideration. The mother aimed to downplay its significance by referring to the father’s past conduct. However, in doing so, she failed to lead any evidence of father’s anti-social behaviours had manifesting in either the present or the future. As a result, the mother failed to identify any compelling reasons as to why the trial judge’s decision should be overturned.