Champness & Hanson 2009 FamCAFC 96

A mother alleged that she had been subjected to family violence and took two children aged 8 and 6 years to visit members of her extended family overseas.  The mother returned only because of a court order, and then lived in a city distant from the father.  The trial judge found that the mother had fallen short of her obligation to facilitate a close meaningful relationship between the children and their father by removing the children from the country and then living inter-state as this had made visiting impracticable.

A mother applied to relocate overseas with two children, and the father appealed.  An expert had given evidence that the father had limited involvement with the children and that the father would need to provide far greater input for a fully meaningful relationship with the children to develop (contact limited involvement).  There was evidence of family violence.

The father appealed complaining that the orders did not promote a meaningful relationship with both parents, as he considered that regular face-to-face contact and interaction were essential especially for young children, and this was compromised by the orders.  An expert gave evidence that a meaningful relationship can be maintained without a parent being involved in the daily lives of their children.

The trial judge noted three criteria for a meaningful relationship: a child has a right to know and be cared for by both parents; a child has a right to spend time on a regular basis with both parents; and a child has a right to communicate with both parents.  The trial judge noted that legislation obliges the court to give greater weight to promoting the best interests of the child over the meaningful relationship with parents.

The trial judge granted sole parental responsibility to the mother and permitted her to relocate overseas where she had extended family as long as ongoing communication with the father was maintained by structured communication methods including bi-annual visits for 2 week periods, letters, email, phone and video recordings of the children.

The appeal court supported the ruling by the trial judge.

The appeal court noted that it is the duty of a family law court to make orders in the best interests of children, rather than to ensure that a child has a meaningful relationship with both parents.

The appeal court noted that the concept of a meaningful relationship is a legal construct rather than a psychological construct, and it is the role of a court not an expert to determine what constitutes a meaningful relationship.

Ongoing Supervision

Following evidence of some family violence, the father was permitted access with his children subject to ongoing supervision (personality aggressive).  The father appealed against the ongoing nature of supervision.

The appeal court noted that the trial judge commented that the father needed to demonstrate a clearer understanding of the impact of his violent and controlling behaviour on the children (impact on child), and an appropriate standard of parenting before the Court should consider discharging the requirement for supervised access (competent parent).   The trial judge might have established a mechanism to review supervision, but he did not.