In a case decided on 3 December 2019, the Full Court of the Family Court allowed a father’s appeal against an Order permitting the mother to relocate with the parties’ eight-year-old child from Australia to a country in Europe, where the mother had been raised. At the first hearing, when the mother had been permitted to relocate, the Independent Children’s Lawyer had opposed relocation and sought that the child continue to live with the mother in Australia and spend time with the father. The father had sought an Order that the child live with him.
The trial Judge at the first hearing found that the father had been violent towards the mother, although not since the parties separated. That Court had also found that there was a risk of harm to the child when it was in the father’s care. The father argued that the Court had made a mistake in coming to that conclusion and the father said that had resulted from the Court’s failure to consider the inevitable loss of parental relationship due to the mother relocating overseas with the child.
The Full Court of the Family Court, while acknowledging that the father had been violent when the parties were together, found that there had been no such behaviour in the six years since the parties had separated. Further, there was no suggestion that the father was violent in his new relationship. The Court held that “it is too far a stretch to suggest that because of the earlier violence, there was an existing risk of harm to the child. The mother did not suggest that there was.”
In summary, the Full Court accepted the father’s submission that the trial judge did not adequately consider and weigh in the balance the effect that relocating to Europe would have on the child, except a loss of his relationship with his father. Further, the Judge had wrongly found there was a risk of harm to the child when in the father’s care.
In the end, the mother was prevented from relocating the child from Australia to Europe.