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Child Relocation: When Is It in the Child’s Best Interests?

Property in Divorce Settlement

Under What Circumstances Might a Party to a Parenting Dispute Be Permitted to Relocate With Their Child?

As mentioned elsewhere on this blog, relocation matters do not constitute a special category of case. They require the court to undertake the same inquiry as any other parenting matter. But when it comes to considering the child’s best interests, re-location matters have a tendency to engage certain best interests factors more strongly than most other parenting disputes. These factors relate to the benefit of a child maintaining a meaningful relationship with both parents and the effect that the court’s refusal to make orders for re-location may have upon the applicant’s parental capacity. The Full Court’s decision in Morrall & Olmos [2017] FamCAFC 2 is one of the most recent examples of how these factors influence the court’s assessment of the child’s best interests.

Morrall & Olmos involved an appeal from the appellant father in relation to orders permitting the respondent mother to relocate to Germany with the their six year old daughter, B. The respondent mother is a German national and a permanent resident of Australia. She immigrated to Australia in 2002 and is forty-three years of age. The respondent father is a national of an undisclosed country and is also a permanent resident. He is thirty-nine years of age. The parties began living together in Brisbane in November 2009. They married the following month. Their child, B, was born in 2010 and has been in her mother’s primary care since birth.

Under What Circumstances Could the Mother Be Permitted to Relocate to Germany?

In November of 2011, both the mother and child travelled to Germany. They were later joined by father in December. He returned to Australia in January. Although the mother and child were expected to return with the father, the parties agreed that she would remain in Germany with the child until 14 February 2012.

The mother did not return Australia by the expected date. This caused the father to commence proceedings under the Hague Convention on the Civil Aspects of International Child Abduction to have the child repatriated to Australia. Having been unaware of the proceedings brought against her, the mother decided to return to Australia with the child and resume her relationship with the father. This occurred on 31 July 2012.

The mother eventually moved to Canberra with the child in November 2012. The father remained in Brisbane while he completed his PhD. They separated four days after the mother had moved from Brisbane to Canberra. The father had commenced proceedings in December 2012 and moved to Canberra to take up employment in March 2013.

The parties resolved the proceedings by way of consent orders. The orders provided that the child would live with the mother and spend time with the father four nights each fortnight and each Thursday after day care.

In February 2015, the mother was diagnosed with a major depressive disorder. In June of that year, her employment contract was terminated. The mother commenced relocation proceedings in November. Specifically, she sought that the consent orders be set aside, sole parental responsibility and she be permitted to relocate to Germany with the child.
Ultimately, it was ordered that unless an order requiring to requiring the mother to return to Australia was made, she would remain in Germany with the child.

The trial judge’s decision was, in essence, based upon the following findings:

  • the child has always lived with the mother and thus regards her as the primary attachment figure;
  • The mother is a “very good primary carer”;
  • She had facilitated the child’s relationship with the father;
  • The mother had developed a major depressive disorder;
  • Had the mother remained in Australia, her mental health would deteriorated to a point where it would have seriously affected her capacity to care for the child; and
  • The mother could make a better life for both herself and the child in Germany.
  • Can a Major Depressive Illness and Its Effect on a Primary Attachment Figure Justify an Order Permitting Relocation?

    On appeal, the husband argued that the trial judge had erred in failing to properly apply s 60CC(2)(a) of the Family Law Act. This particular section of the Act is concerned with the benefit to the child of having a relationship with both parents. In this regard, the husband claimed that:

  • The trial judge focused on the mother’s interests rather than the child’s;
  • The trial judge had wrongly found that the child’s relationship to the father would flourish, despite her move to Germany;
  • There was no evidence that the child’s welfare would be compromised if the wife were to remain in Australia;
  • The orders do not secure a meaningful relationship between the father and child
  • The Full Court rejected the father’s submission that the trial judge had erred in failing to property apply s 60CC(2)(a) on the following bases. During the course of the trial judge’s decision, it was held that:

  • ”…the best interests of the child have priority over the interests of the parents.”; and
  • ”the mother needed to demonstrate…how the proposed move is in all of the circumstances, in the child’s best interests.”
  • Additionally, to the extent that the trial judge referred to the mother’s interests, it was always in relation to her parental capacities. It is necessary for a court to consider a party’s capacity to care for a child. And such considerations often involve consideration the parties’ interests where a failure to fulfil those interests may have some bearing upon the child’s welfare.

    The Full Court also rejected the husband’s claim that the trial judge erred in finding that the child’s relationship with the father would flourish. In this regard, it held that:

  • The father had demonstrated a firm commitment to developing his relationship with the child;
  • He moved from Brisbane to Canberra to spend more time with the child;
  • The mother had encouraged a relationship between both the father and the child, and this was likely to continue; and
  • The child would spend four weeks each year with the father in Australia and enjoy regular communication via Skype.
  • Finally, and contrary to the father’s submissions, the Full Court accepted the trial judge’s finding that the mother’s mental condition would deteriorate to such an extent that it would undermine her relationship with the child. This particular consideration attracted significant weight given that

  • The mother had been identified as the child’s primary attachment figure; and
  • To date, she had done a remarkable job of caring for the child.
  • The concern, therefore, was that any further decline in her mental condition might undermine the child’s relationship to her primary attachment figure. As a result, the quality of parenting that the child would receive would decline to such an extent that permitted the relocation was justified.

    Relocation and the Importance of Preserving the Primary Attachment Figure’s Capacity to Tend to the Child

    Morrall & Olmos seems to be the most recent case in a line of authorities underscoring the significance the primary attachment figure’s psychological well-being. This is not be confused with the notion that it is the primary attachment figure’s mental state per se that featured most prominently in the Full Court’ analysis of the child’s best interests. Rather, it is the extent to which the primary attachment figure’s mental state might undermine the child’s best interests by affecting the quality of parenting the child is to receive. This appears to be a very weighty consideration