MOTHER WANTS TO MOVE 220 KILOMETERS AWAY WITH HER CHILDREN
Degman & Waldrum [2020] FCCA 3426 (16 December 2020)
This case involves a mother who seeks to relocate 220 kilometers away with her children from their current home. The father opposes such relocation.
Facts:
The mother seeks to relocate with the children to Town B, 220 kilometres away from their current home in City C. The father opposes her application. There are two children of the relationship; X born aged 10 and Y born in aged 7.
The mother says that whilst the children have a close bond with the father she has always been the primary carer and it would not be in the children’s best interests for them to live with their father should she not be permitted to relocate with the children.
The father is concerned about the children growing up in a small isolated community without the family support that they have in City C and is concerned about the impact the relocation would have on his relationship with the children and with both sets of grandparents.
Issue: Should the court grant the application for relocation?
Law:
Analysis:
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
There are no risk concerns in this case. There are no allegations of family violence. Section 60CC(2)(a) prevails. The court is satisfied that the children will continue to enjoy the benefit of a meaningful relationship with both parents.
This is a very finely balanced case. If the mother and children were to move, the children would continue to have a close and meaningful relationship with the father and the extended paternal family. However, it would not be optimal and the children would miss out on the regularity of the paternal family gatherings which they attend every week, to only occurring during their time with the father during school holidays. It would also mean that the father would not be able to be involved with the children’s school pickups and drop-offs and other incidental interactions. There would also be other adjustments that the children would need to make, including not being able to participate in the same extracurricular activities with the same frequency which the children would adjust to. However, more significantly the change of school does not simply involve a change from a similar school to another, but to a very small school. The father raises very real and legitimate concerns about the quality of the education on offer in Town B being a very small country town and as, it is clear that the mother has not given this issue a great deal of thought, particularly looking longer term to the issue of high school.
Conclusion: Hence, The court denies the mother’s application to relocate with her children.
