Ahcraft & Haber 2010 FamCA 6

A mother applied to relocate to another city with her child so that she could re-partner.  The mother gave evidence that she would be devastated if she was unable to relocate, and she would be physically and emotionally unable to cope if she was unable to relocate.  There was no suggestion that the mother would be unable to cope if she remained in the same city.

One family consultant recommended against relocation as the child was just beginning overnight stays with the father, and recommended that the child maintain regular contact with the father.

A second family consultant two years later assessed the child as being resilient, as having good attachment to both parents, and as able to adapt to the proposed relocation.

The judge noted that the major factor when deciding relocation is the child’s best interests rather than a mother’s difficulty in coping (parental distress).

The judge ruled that one of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties in a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships free from unnecessary interference from a former spouse or partner or from a court.  Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner that may be transmitted to a child or otherwise impinge on the happiness of the custodial (or resident) parent in a way that is adverse to the welfare and best interests of the child. The touchstone for the ultimate decision must remain the welfare or best interests of the child and not the wishes and interests of the parents.

The judge found that whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.

The judge ordered that the parents have equal shared parental responsibility, that the child live with the mother and spend time with the father, and allowed the mother to relocate.