Relocation cases are difficult. There are no two ways about it. Often, it is all or nothing. One parent wants to move interstate or overseas with the child and the other parent wants the child to stay nearby to them.
A 2017 Full Court decision highlights the ongoing uncertainty with these cases and the wide discretion that is with a Trial Judge in determining whether a child should relocate or not.
In the recent Full Court decision of Morrall & Olmos (12 January 2017). The mother was successful in relocating to Germany with the child, despite her previous conduct and despite recommendations by the family report writer.
The Trial Judge allowed the mother to relocate to Germany. The mother was successful in her Application before a Trial Judge to be permitted for her daughter to relocate with her to Germany to reside permanently. The father Appealed and the Appeal was unsuccessful.
The background to this matter is that the mother is a German national and permanent resident of Australia and immigrated to Australia in 2002. The father is an Australian Citizen and immigrated from his country of birth (not Germany) to Australia in 2009.
The mother and father commenced cohabitation in Brisbane in November 2009 and were married in December 2009. The child was born in 2010 and was 6 years of age at the time of the Appeal.
In November 2011 the mother and child went to Germany by agreement for a holiday. The father joined them in December 2011 and as planned he returned to Australia on 4 January 2012. The mother and child were due to return with him but as agreed they would extend their stay and return to Australian on 14 February 2012.
The mother did not return with the child and eventually the father commenced proceedings pursuant to the Hague Convention to secure the child’s return. The mother (unaware of the father’s Application) decided that she would resume her relationship with the father and on 31 July 2012 returned to Australia, with the child.
The parties then moved from Brisbane to Canberra but separated soon after in November 2012. The father returned to Brisbane whilst the mother stayed in Canberra. After proceedings were filed the father relocated to Canberra in March 2013. Parenting proceedings were concluded in 2014 with Orders providing for the child to live with the mother and spend time with the father four (4) nights per fortnight and the mother not pursuing her Application to relocate.
In February 2015 the mother was diagnosed with a major depressive disorder and the mother’s employment contract shortly thereafter concluded.
The mother reinstituted parenting proceedings in November 2015 and sought that the Orders of July 2014 be set aside and that she have sole parental responsibility for child and be permitted to relocate to Germany. The important principals to emerge from this case include the following: –
- Parenting Orders are never final – despite Final Orders being agreed upon in 2014 and the mother not proceeding with the relocation case, her change of circumstances relating to her major depressive illness and loss of employment allowed her to reopen the issue of relocation to Germany;
- Relocation cases really are a lottery – there is a substantial discretion with a Trial Judge after hearing all the evidence to make Orders in the best interest of the child;
The enquiry as to possible options and propositions that may occur if a child is allowed to relocate or not relocate is not confined by the proposals of the parties and the fundamental requirement of the Act is to regard the best interest of the child as paramount.
As the High Court emphasised in the 2002 decision of U v U, the Court’s consideration is not confined by the proposals of the parties and the fundamental requirement of the Act is to regard the best interests of the child as paramount. One has to consider the likely consequences for the child of the Orders ultimately made. Inevitably, examination of hypothetical future possibilities as to a parties’ response to the Orders made, renders absolute precision of prediction unattainable.
The case is also interesting, in that the mother was effectively in breach of the Hague Convention by failing to return the child from Germany, but those proceedings were not determined, due to the unilateral return of the mother.
One would have thought that this could have caused concern with the Judge as to her future intentions and promoting contact between the child and the father and their relationship.
The exercise of looking to and making Orders for the future, is peculiarly a discretionary one. A primary Judge is bound to look beyond any tactical elements within the approach by either party in their stated position or proposals. In many cases, a parties’ Application to relocate provokes a cross-application by the other party for a variation of the residence Order in their favour. Such cross-applications may be largely tactical to enable the strategist to cross-examine along the lines of “what will you do if your Application is refused?” If a party responds by saying that he or she will remain with the child, then the cross-examiner feels that they have demonstrated that the impact of refusal to relocate upon that party would not be that significant.
If on the other hand, the party says that they will go and relocate regardless of the decision, then the cross-examiner feels that the party is shallow, uncaring or self-centred.
However, experienced Family Court Judges are well used to tactics and will readily distinguish between the cross-application that has pre-existing foundation and one that is purely tactical. The Judge in the end must evaluate comparatively each option for the child, one against another.
The family consultant in preparation of the Family Report concluded that the child’s relationship would be lost or fractured with the father if the child moved to Germany. Contrary to this finding by the Court expert, the Trial Judge found that the relocation would result in the relationship being diminished by distance but given the relationship as it now stands, which must reflect the mother not sabotaging it and in fact supporting it… the Trial Judge found that the relationship will not be lost or fractured if the mother moved to Germany.
In coming to this conclusion the Primary Judge considered various studies referenced by the Family Consultant which traced the effect on children deprived of a parent, although His Honour accepted the evidence given by the Family Consultant as to the effect of these studies, His Honour found that because the child would not be deprived of her father, the alarming outcomes identified would not eventuate.
The Full Court held that His Honour was entitled to distinguish between circumstances examined by the studies and those which applied to the subject child. The Full Court said that there can be no doubt that this conclusion was available and the reasons provide adequate explanation for it.
In the High Court case of U v U, a case involving the potential international relocation of a child and the evidence of a counsellor in that context, the High Court observed that a Judge is not bound by a recommendation of a counsellor (family consultant), or bound to accept or reject the whole or any part of the evidence of such a witness.
The problem for practitioners of course, is advising clients in this area of relocation, where often substantial weight is placed every day by many Judges upon the recommendations and findings of family consultations and other independent health experts relied upon by Judges.
It is easy to say that the recommendations are not binding, but decisions such as this case fly in the face of many decisions made on a day to day basis, where recommendations are followed strictly by Judges from simple parenting cases to the most complex. The breadth of the discretion said to apply would seem to be approaching a limit so wide as to make such cases a lottery.
In conclusion, it is my opinion that there can be no doubt that the decision in this case, is both alarming and concerning to practitioners. It highlights the highly discretionary nature in parenting matters and the problems with ever being successful in Appeals despite the fact that an Appeal Court would have probably made Orders different, or in terms of recommendations of a Court expert.
It is suggested, that the best method to reduce uncertainty and risk, is not to toss a coin, but to be extra diligent in preparing a client’s case and be detailed and particular in relation to the presentation of evidence on behalf of one’s client.
A well prepared and presented relocation case will still have a greater chance of success than a poorly presented one. The element of discretion however is still substantial and setting realistic expectations for clients as to outcomes and encouraging alternative solutions outside of litigation, become even more imperative when the discretion is so wide.