By Gianna Huesch
Relocation: Mother’s unhappiness the decisive factor
Cases involving parents wishing to relocate with children are frequently heard in the family courts. If you need advice on relocation, please contact Alliance on (02) 6223 2400.
Every relocation case that comes before the family court is unique, but in each case, a judge is required to make a decision as to which competing outcome will be in the best interests of the child, not the best interests of the parents. However, sometimes what is in the child’s best interests will also depend on what is in their primary carer’s best interests, as was seen in a recent relocation case before the appeals court.
In the case of Holtzmann & Holtzmann (court-ordered pseudonyms), a mother who was the primary carer of two young children was permitted to relocate from Darwin to a town in Western Australia, with her depressive mood at the centre of the trial judge’s decision. That decision has now been re-confirmed on appeal. The appeal court agreed that the mother’s “serious unhappiness” was unlikely to improve unless relocation was permitted, and that her unhappy mood if she couldn’t move would have an increasingly negative impact on the children.
The background to the case was that the mother had been born and raised in the Western Australian town to which she wished to relocate with the two subject children, aged 9 and 5 when the marriage broke up. She had moved to Darwin to join the husand upon marriage, and after separation, had remained there for another five years. In this time she had developed a depressive disorder, linked to her grief at the marriage breaking down. At the time of trial, she had been seeing a psychiatrist for several years. She sought permission to return to Western Australia in order to be closer to family support.
The relocation case revolved around the “mother’s capacity to overcome the feelings of unhappiness and isolation” she has while living in Darwin, which at times ‘overwhelms her capacity to focus on the children and her ability to identify what is really relevant to their welfare’”. She was reported to be experiencing “periods of tearfulness”, witnessed by the children, and one of the children had been experiencing anxiety believed to be directly related to the mother’s low mood.
The genuineness of the mother’s depression was not in dispute. The father’s case was that even if the mother was unhappy, it was still more important that the children stayed near him. The family court disagreed. The effect of the mother’s depression on her parenting capacity was regarded as crucial, with the trial judge stating:
“I find that the need to safeguard the mother’s parenting capacity as primary carer outweighs the desirability of the children remaining in Darwin close to the father.”
While the mother’s parenting capacity in Darwin was considered in danger of being compromised by her depression, it was felt that her parenting capacity upon relocation would be much improved.
The family consultant, who recommended the mother stay in Darwin, expressed the view that her depression could be “addressed, and diminished, by counselling and greater social involvement”. But the evidence of the mother’s psychiatrist, whose report was unchallenged, indicated that the mother was likely to be happier if she moved and that “her children would notice her improved happiness, and be positively impacted upon by that happiness”. The trial judge preferred the psychiatrist’s evidence over that of the family consultant, who had only met the mother twice.
The father mentioned his concerns regarding the mother’s mental health, including issues relating to her abuse of alcohol, as well as his occasional concerns that she may self-harm or harm the children. He gave evidence that on one occasion the mother had been “so depressed she forgot that she had left the family dog in her car, and so it died from heat exhaustion”.
But he stopped short of arguing that her parenting capacity was compromised regardless of her residence, nor that her mental health issues meant he should be granted the children’s primary care. It’s possible that the father did not pursue primary care due to the fact that he worked a 50-70 hour week and had also repartnered and had a new family. It was therefore unlikely to be a realistic and practical option for him, though perhaps he now regrets not having run such a case.
As always in the family courts, judicial subjectivity is inevitably involved, and on appeal, unless the appellate judges can find some error in the trial judge’s reasoning, it’s not possible for them to establish error simply because they personally may have reached a different conclusion on the evidence. In this case, the grounds the father gave for asserting error were not established, and he was also ordered to pay costs.
You can read the case here.
Do you need assistance with preparing an application to relocate with your children or alternatively, in responding to a co-parent’s application seeking to relocate with your kids? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law 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.