W & R 2006 FamCA 25

Parties migrated to Australia from a nearby country and had children.  When the parents separated they agreed that the children remain with the mother provided that she remained in Australia.  Two years later the mother wanted to return to her home country taking the children with her as she was the primary carer (relocate).

The court held that parenting orders might restrict the residency of a parent to enable both parents to have contact with children.  The best interests of child is the paramount but not sole consideration.  The needs and welfare of the primary carer should not be given a priori benefit over regular direct contact and a continuing meaningful relationship between the children and the non-resident parent.  It is an error to equate the happiness and contentment of a resident mother with the best interests of children (parental distress).