Child Custody, Parental Separation & International Relocation in Kerson & Blake (2018) FAMCAFC 215

Background

When a parent is considering relocation, an application must be made, and the Court has to weigh and balance the children's best interests with the relocating parent's freedom of movement. This issue recently arose in the case of Kerson & Blake (2018) FamCAFC 215, in which the mother successfully appealed an order which provided that her children were to live with their father in Canberra should she relocate back to the United States of America.

Key Facts

In this case, the mother and father and their two children were US citizens but had moved to Canberra in July 2012. In 2015 the parents separated but successfully shared the care arrangements for the children for two years until the mother filed a relocation application to return with the children to the US. The father was opposed to the application and contended that the children should stay in Canberra with him.

The primary judge found it a "finely balanced case" and a "choice between good parents", but that he considered that the father was more likely to facilitate the children's relationship with the mother. The judge made orders that included the parties having equal shared parental responsibility but if the mother relocated the children would live with the father. The mother appealed arguing that it was not the case that the father would be better at supporting and facilitating the children's relationship with the other parent in comparison with her capacity to do so.

The Full Court stated:

“His Honour found that up to the time of the trial the parties had co-operated in an equal shared care arrangement ... (and) concluded that the parents each had been ‘generally supportive of each other’s relationship with the children although this had taken place in the context of severe conflict between them’.

Counsel for the mother argued that his Honour's conclusion that the father was likely to support the children's relationship better was based solely on what occurred in the July/August 2017 trip to the USA ... His Honour placed determinative weight on that one occasion to support the finding that the mother was hostile to that communication and then, relying on this finding found that the mother's commitment to fostering the relationship was called ‘into question' based, it seems, not on the whole of the mother’s evidence ...”

The Family Report considered that both parents were ‘loving and committed caregivers and, individually, they appear to be motivated and well-intended concerning the responsibilities of parenthood’.

The original decision, based on the primary judge's opinion that the father was more likely to support the children's relationship with their other parent, was not upheld. It was considered that the Trial Judge had placed too much weight on one occasion when the mother had failed to facilitate communication between the children and the father, rather than considering the mother's evidence as a whole.

The appeal was allowed, and the case was resubmitted for rehearing.

Key Issues

A key objective of the Family Law Act, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2005, is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. This is to protect children from physical or psychological harm; from being subjected to, abuse, neglect or family violence; to ensure children receive adequate and proper parenting to help them achieve their full potential; and to ensure parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

There are a number of principles which underly this objective. Unless contrary to a child's best interest:

• children have the right to know and be cared for by both parents regardless of whether their parents are married, separated, have never married or even lived together;

• children have the right to spend time and communicate regularly with both parents and significant "others" such as grandparents;

• parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

• parents should agree about the future parenting of their children; and

• children have a right to enjoy their culture including the right to enjoy that culture with other people who share that culture.

Each parent has the responsibility for a child who is not 18 years of age, regardless of separation, divorce or remarriage. This parental responsibility includes such matters as providing a home; having contact with the child; protecting and maintaining a child; determining a child's education and religious needs; consenting to medical treatment for a child and administering a child's property.

It is evident from the above objective, and underlying principles, that a challenge to the relocation of one parent, particularly overseas, is going to be especially difficult where both are considered "good parents" and a tough choice must be made.

What does it mean?

In family law the best interests of the children are paramount but exactly what those best interests mean is far from straightforward in disputed cases involving the relocation of one parent.

The other parent’s relationship with their children will be an important consideration in the Family Court in child custody cases. This is especially the case when separated parents want to move either interstate or overseas, whether that is for family support, work, or other reasons.

Where the non-relocating parent opposes the relocation of the children, the parent proposing relocation must make an Application to the Federal Circuit Court of Australia or Family Court of Australia (if international relocation is proposed) to obtain Final Orders permitting the relocation.

Relocation parenting disputes are among the most challenging of cases and are often almost impossible to mediate or compromise.

Contact Us

At Szabo & Associates Solicitors, we have specialist expertise in helping parents to relocate their children or resisting the other parent’s relocation within Australia or overseas. To discuss your specific circumstances, or any other family law query, please contact us on 02 9281 5088 or fill in our online contact form.