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Court allows mother to relocate with children from North Queensland to Brisbane against family consultants recommendations.

Relocating from one place to another with children are not easy cases to consider.  All avenues must be canvassed to ascertain the effects on the children being able to maintain the rights open to them as defined by the Family Law Act. Namely, that children have a right to a meaningful relationship with both parents. Other considerations that are often needed to be looked at are how the relocation, or not allowing the relocation, will impact on the parental responsibilities of the relocating parent. A global view needs to be taken, in other words, what is the big picture here?

Questions then arise for the court to consider such as:

  • Would the relocation be in the children’s ultimate best interests?
  • Would the general needs of all the children be best met by the relocation?
  • Would the relocating parents capacity to responsibly parent be adversely affected if not permitted to relocate?
  • Which parent can, does, and is able to provide for the needs of the children, including both their intellectual and emotional needs?
  • Would the relocation significantly enhance the abilities of the relocating parent to fully attend to the care of the children?

In Wright & Watson [2016] FCCA 127 (11 March 2016) Judge Coker heard the mother’s application to relocate three children – “X” aged 12, “Y” (8) and “Z” (7) – from North Queensland to Brisbane. Z suffered from autism and was described as “severely disabled”. The mother’s relocation was to facilitate her obtaining parental support from family members who lived there. The father opposed the relocation but proposed that if relocation was allowed X live with him due to his “very close bond” with X ([4]).

A family report by “Mr H” concluded that relocation for X would be “highly detrimental” for the child, based on his level of development and attachment to his father. Mr H also concluded that relocation would not be in Y’s or Z’s best interests, that Y’s positive relationship with her father would be adversely affected by relocation; and that limiting Z’s time to school holiday time would result in time that was “extremely difficult” to manage ([79]).

The Court said (from [49]):

“ … My impression, particularly of the mother, was that she was … at the end of her tether. It was clear that the mother had gone above and beyond what could have been properly expected of her, in relation to the care of the children. The parties separated in or about June of 2011, and for the next two and a half years or thereabouts, the mother has taken on the significantly greater role in relation to providing for and meeting the needs of the children.

[50] The father had the opportunity, should he have desired to do so, to significantly involve himself in the lives of the children, but did not do so. [54] The mother was worn out, though she had not done all that she possibly could to assist herself. It was clear, for example, that she had not sought as significantly as might have been available, the assistance of Autism Queensland or the respite services of (omitted). But just as clearly, the father had not, until a matter of days at most prior to the hearing, sought out information with regard to such services, so as to keep the mother informed or to assist her. The father had little, if any, appreciation of the enormous burden placed upon the mother, and the responsibilities that arose for her, without his input.

[57] The mother in cross-examination acknowledged that she was exhausted, that she was struggling and that she was not coping. She indicated that she was stretched too far and needed support. And when asked what that support would be, answered, I thought rather tellingly, that it would be support ‘for me to be a better parent’. … Whilst there was legitimately criticism and concern that arose from the fact that there was no independent corroborative evidence as to the mother’s psychological or physical circumstances, and the factors that were influencing that, I am satisfied, from the evidence that is available, that it was clear that the mother had been borne down over years with the responsibilities that she had taken on, in relation to the care of the children.

As to the concerns expressed by the report writer, the Court said (from [81]):

“[81] … [W]hen speaking about the effects upon X of relocation and the possibility of it being highly detrimental given his current level of development and attachment to his father, there is little appreciation of the negative impacts upon Y.

[82] ( … ) The recommendations that the report writer makes with regard to the three children not relocating to Brisbane and remaining in an area that allows them to spend significant time on alternate weeks with their father fails to appreciate the enormous impost upon the mother and the fact that it is all centred upon the father and his wishes.

[86] ( … ) [T]he report writer was asked about decisions that the mother and the father have made and … I unfortunately gained the impression that his position was to suggest that it was the mother who must make the concessions …

[89] … I was troubled by his [Mr H’s] lack of appreciation … of the fact that the mother was to a far more significant degree if not entirely responsible for the care of the children. ( … )

[90] The report writer was, I thought, fixated far more on the relationship between the father and X than on the general needs of all three of these children. ( … )”

The Court continued (from 114):

“[114] These children have a meaningful relationship with both of their parents but they each in different ways have other needs [which] must be addressed and where those needs, as is the case here, are different they must be balanced in order to ultimately lead to findings relating to the best interests of all the children.

[120] the report writer acknowledged that what would be good for the mother, would be good for the children, and that the mother’s abilities would be significantly enhanced if she were able to relocate and therefore more fully attend to the care of the children, particularly noting that the father would not be able to cope with all three children.

[129] In my assessment, that particular consideration is one of real significance … and flows directly into the considerations that arise pursuant to … section 60CC(3)(c). The father has been far less involved and has failed to take the opportunities that were available to him to participate in the decision-making process, particularly in respect of the special needs of Z. ( … )

[134] … [T]here is in my assessment an enormous difference between the capacities of each of the parents to provide for the needs of the children, including both their intellectual and emotional needs, as well as a vast gulf between the attitudes of each of the parents to all three of the children and to the responsibilities associated with the parenting of the children.

[135] Unfortunately, that distinction can simply be stated as the mother making virtually all of the necessary decisions and concessions required to facilitate the relationship with the father and the father’s unwillingness or inability to accept and act upon the responsibilities which arise in relation to parenting. ( … )”

Orders were made permitting the mother to relocate with the children.

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