Advertisement

Children – relocation order not reconciled by court with recommendation move not occur until child was nine

In Denham & Newsham [2021] FamCAFC 141 (6 August 2021), the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) allowed a father’s appeal from a decision of Carew J to permit a mother to relocate with a three-year-old child from Australia to Belgium from March 2022.

The hearing occurred in February 2020. The orders included provision for the father to travel to Belgium at least three times a year and that the child return to Australia each year.

The Full Court said (from [28]):

“[The single expert psychiatrist] … gave evidence that the child was too young to sustain significant separations from his father … (…)

[35] … [T]he single expert … did not give evidence that the child would develop the … capacity to sustain significant gaps of contact if there was an additional two years of regular contact … Her evidence was … relocation should not be considered before the child was eight or nine years of age. This evidence … was of signal importance to the central question and had to be considered. … [I]f the … judge determined that … this evidence should not be accepted, it was necessary to explain why not. … This did not occur and the challenges … have been established. (…)

[51] … [T]he documents issued by the Australian Department of Home Affairs … record that the availability of regular air travel should not be assumed and … that flights have reduced.

[52] Had this evidence been placed before the … judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father … would be no more than mere speculation. … This … undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

Share this article
Share on facebook
Share on twitter
Share on linkedin

Leave a Reply

Your email address will not be published. Required fields are marked *

Search by keyword