Balancing The Needs Of Parents And Children In Matters Concerning Relocation

By Elizabeth Moore, Lawyer, MST Lawyers

Parents, whether together or apart, know the difficulty of deciding what is in their child’s best interests. In the family law context, family law courts must consider a range of competing factors to determine what is in the best interests of children of separated caregivers. This is particularly important in relocation matters where often primary carers argue a relocation may improve parental support system, but prospective “left behind parents” argue distance will likely impede the child/parent relationship. 

In the recent case of Lambton & Lambton (No. 2), the Federal Circuit Court was tasked to consider a request by the mother to relocate from Australia to her country of origin, the United Kingdom (“UK”), with the parties’ three and a half year old child. The judge had to take into consideration the mother’s mental health and the child’s relationship with the father when determining what was in the child’s best interests.

Original decision

At first instance, the mother sought orders from a Federal Circuit Court judge allowing her to relocate from Australia with the child to the UK, her country of origin. The child was three and a half years old at the time of the decision and was soon to spend five nights per fortnight in her father’s care.   The mother suffered depression and was under the care of a treating psychiatrist who gave evidence in the proceedings.

Consideration 1: Mental health hindering parenting capacity

The mother argued that her depression affected her parenting capacity in Australia. She argued that her mental health would improve and her parenting capacity would be maximised if she relocated to the UK because she would have support from her family. She also claimed that she would have financial security and she would not face the difficult parenting relationship with the father on a daily basis.

The mother relied on her psychiatrist’s expert medical opinion supported the assertions of:

  1. The state of the mother’s mental health; and
  2. If the mother’s mental health were to improve, then it would increase her ability to parent.

The father argued that there was no firm evidence to show that the mother’s mental health would improve should she relocate to the UK. When cross-examined, the mother’s treating psychiatrist confirmed that he could not make a ‘clear prediction as to the mother’s medical condition if she were permitted to relocate’.

Consideration 2: The child’s meaningful relationship with the father

Every child has the right to a meaningful relationship with both of their parents. It was accepted that the child had a close and loving relationship with the father. The father argued that the relationship between himself and the child would likely not be maintained over time if they relocated to the UK. The mother suggested that the father could come to the UK for an extended stay each year and she could do likewise in Australia. When cross-examined on this point, she conceded that this solution was not a practical one.

Findings

The mother’s application to move to the UK from Australia was denied by the trial judge. The judge stated that there was ‘no one right answer’ and that the decision was rather a values judgement with competing factors. He considered the different situations to be:

  1. If the mother relocates with the child to the UK:
    1. The mother’s mental health would likely improve; and
    2. The child’s relationship with the father would likely not be maintained.
  2. If the mother remains in Australia with the child:
    1. The mother’s parenting capacity will be hindered due to poor mental health; and
    2. The child’s relationship with the father would be maintained.

Decision

After hearing evidence from a family report writer and the mother’s treating psychiatrist, The judge concluded that:

  1. Both parents could provide for the child’s needs in Australia;
  2. The mother’s mental health may improve by moving to the UK however, if it did not or should her condition deteriorate then the child would have an ‘impaired mother without the benefit of the relationship with her father’;
  3. If the child remains in Australia, then she would ‘have the benefit of a continuing and evolving relationship with her father… Her mother’s parenting might not be optimal, but it will be sufficient.

The judge ultimately decided that it was in the best interests of the child for the mother not to relocate to the UK, concluding that ‘the least harmful alternative for the child is that she remains living in Australia.

On appeal

In November 2017, the mother unsuccessfully appealed the trial judge’s decision. The Full Court of the Family Court affirmed the trial judge had taken the correct approach in exercising his discretion to make orders precluding the mother’s relocation with the child.

If you require assistance with a parenting or financial disputes, please email our Family Law team or call us on +61 3 8540 0200.