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Family Law

International relocation permitted due to mother’s happiness, decision to go anyway

By March 18, 2020February 23rd, 2024No Comments

An Irish couple who moved to Australia experienced immediate and continual disagreement over whether or not to stay here, with the wife eventually seeking to relocate with the children back “home” to Ireland. The mother was successful in her international relocation matter in the family court after the judge said that moving to Ireland was in the kids’ best interests.

In the international relocation case of Ready & Ready (court ordered pseudonyms), involving two children aged 5 and 8, the parents were each happy with the other’s parenting abilities but they clashed on the issue of remaining in Australia.  The mother had originally agreed to move to Australia only for the period of the father’s then-four year work contract and trusted his promises they would return if she was unhappy.  However the father had found “personally fulfilling, financially rewarding” employment here and he now regards Australia as home.

The mother eventually took the children to Ireland by herself after signing an initiating application in her relocation matter and only returned with the children after the father started Hague Convention proceedings. Now the relocation matter was being heard.

In deciding relocation matters, the courts weigh up a whole range of factors related to the “best interests of the child” principle. This involves a delicate balancing of the needs of children with the needs of parents:

“Whilst any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live, that right must defer to the expressed paramount consideration – the welfare of the children – if that were to be adversely affected by a movement of a parent.”

Although there are a myriad of factors the courts have to consider when dealing with a relocation case, whether an international relocation or a domestic one, this case reinforces the importance the courts place on a primary parent’s happiness as it relates to their parenting to their best capacity.

The mother “considered her mental health to be so important to her functioning – so that she could be her best for the children – that she needed to return to Ireland”. She had reported experiencing mood disturbances, feeling extremely unhappy, worthless, hopeless and overwhelmed by her situation of feeling “trapped in Australia”. The father characterised the mother’s distress as “homesickness” but the judge said, “from her perspective, her feelings of isolation are much greater than that”.

The case also highlights the importance of family support in helping the primary parent seek solace and be “happier” so that they can parent better. The mother was also able to draw on plenty of family support available in Ireland, and point to none here.

The mother gave further evidence of employment opportunities she had in Ireland and that this meant she would be better off financially.

Mother would go anyway

Given the perceived advantages to her, the mother expressed the opinion at her trial that she would still return to Ireland even without the children. This is an important aspect of relocation cases because of the potential impact on kids if their primary parent moves away from them if they were not allowed to move too. The mother returning to Ireland without the children could lead them to feel rejected and abandoned by her. The father supported the importance of this by expressing concern over the children’s ability to cope if this happened and stating their likely need for therapy. As we have seen before, when a parent with primary custody declares they will leave with or without the children, this can influence the court’s decision.

Kids’ primary attachment to mother

The impact on the children of losing their mother as primary carer was said to be because it was “clearly established” that the children had formed their primary attachment with her and were still at the age when there were long term developmental disadvantages to disrupting the primary attachment. The court noted “the father’s proposal that the children continue to live in Australia but primarily with their mother reflected an acceptance of this primary attachment and an appreciation of the desirability of avoiding disruption to the same”.

But transitioning to the father’s primary care if the mother returned to Ireland without them was likely to significantly disrupt the children’s lives, cause them grief, distress and separation anxiety and “probably feeling responsible for her absence”. All of which would impact on their sense of self and their emotional stability.

Geographical distance doesn’t have to spell the end of a parent’s relationship with their child, especially with the ability of technology to help people stay in contact. However the court acknowledged that the children would still be affected by the loss of the daily relationship with their father and appreciated that this would affect him as well when he would be “returning home after work…to find the house dark and the children gone”.

But the judge said while the change “will undoubtedly affect the quality of the children’s relationships with him, I am not persuaded that they will be unable to maintain a meaningful relationship with him”.

Can mother support the relationship with dad?

The mother’s case was assisted by the fact that she supported, appreciated and valued the importance of the father’s role in the children’s lives and the court was satisfied she would enable his future engagement with them.

Another aspect which helped the mother was the strength of the children’s relationship with the father. The children had “good and close” relationships with their dad, meaning strong ongoing relationships were possible to maintain. It’s quite an irony of relocation cases that the stronger your relationship is with your children, the more the courts will find it possible for the children to be able to maintain the relationship despite geographical distance.

You can read this international relocation case here.

Need help with a relocation matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

You can also read the Family Court’s guidance on relocation matters here.


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