Family Court Stops Mother Taking Children Overseas to live

30 July 2010

In the case of Cowley and Mendoza decided in the Family Court of Australia in July 2010, a mother of two young children aged 3 and 5 was refused permission to take those children back to her home-land of Brazil.  The father was an Australian and he had met the mother whilst on a back-packing holiday.  They married in Brazil in 2003 and in the subsequent years spent some time in Brazil and some time in Australia. In 2008, they decided to make Australia their home and to educate the children in Australia.

Unfortunately, the marriage broke down in March 2009 and they separated under the one roof.  In this case, both parents played a very active role in the care and upbringing of the children. 

The mother's proposal was that the children should be permitted to relocate to Brazil as she considered that to be the best option.  The father wished the children, and the mother- if she decided to stay in Australia, to remain living in Australia as the best option- he, himself not being willing to relocate to Brazil.  He proposed that the parenting be shared in Australia.

The Judge made the following findings:

In my view, the mother’s choices have neither more, nor less, “legitimacy” than the father’s choices. The mother – understandably and legitimately – wishes to live in Brazil. Brazil is a country where her family lives and with which she identifies. She considers it a preferable place to live to Australia. It is understandable that a caring and loving mother would want her children to live with her in that country. Equally, the father –understandably and legitimately - wishes to live in Australia. It is the country of his birth. He likes living here. He considers it a preferable place to live to Brazil. It is understandable that a caring and loving father would want to have his children living with him in Australia.

…. The issue is, “where [do] the best interests of [these two young children] lie and what arrangements will best serve those interests. To that statement it need now be added “if (as here) the parents are to share equally parental responsibility, is an equal time order (or substantial and significant time order) ‘reasonably practicable’”.

The findings which, all parties agree, are uncontroversial in this case and which are enumerated in Exhibit 1 are:

1. The children are each very young and are too young to express “views”;

2. Additionally, the children are too young to appreciate the effect of separation from either of their parents;

3. The children are closely bonded and attached to each of their parents;

4. Whilst allegations are made by each parent about alleged parenting deficiencies in the other, each parent is, in fact a “good enough parent” as that expression is used by Ms E in her report (that is, in the sense coined by the British paediatrician, psychiatrist and psychoanalyst Donald Winnicott and used thereafter in the psychological literature);

5. In that respect, Ms E is right when she says (para 49) that, while both parents allege limitations in the other’s parenting, if what each alleges about the other is true, it does not necessarily strengthen their respective individual arguments. That is emphasised by (among other things) reference to the respective proposals for the involvement of the other parent in each parent’s proposals;

6. Apart from a period of about 6 months two years ago, when the children were about 3 and 18 months old, they have lived with both of their parents, including during the almost 12 months that the parties have been separated under the one roof;

7. Any proposal, including a co-parenting arrangement in Australia, will involve a change for the children to what they have erstwhile experienced;

8. A proposal that sees their parents separated with one living in Australia and one living in Brazil will involve a very significant change for them;

9. If the children stay with one parent and the other parent does not move to Brazil or stay in Australia as the case may be, the children will be separated from an important loved person in their lives and the children are likely to suffer at least some emotional detriment as a result. In particular such a result, to use Ms E’s words, “can be destabilising, thus, undermining their capacity to form secure attachments to either of their parents and form healthy relationships as adults. Such an arrangement can cause children to become anxious and stressed which can impact upon their developmental progress”;

10. In the event of that separation “whilst regular communication would assist in compensating for this loss [of both parents regularly in their lives], at this age it is not a satisfactory replacement / alternative to regular experiential time” (Ms E par 58);

11. In the event of that separation, the amount of “experiential time” will, by reason of the parties’ respective proposals, and practical considerations of cost and distance, be effectively reduced to a couple of times per year;

12. A relationship bounded by that “experiential time” [again adopting Ms E’s words] “is not good enough, particularly at [D] and [R’s] age”;

13. Each parent is likely to react with distress and disappointment to a decision not in accordance with their desired outcome.

The Judge was ultimately of the view that… To separate the children now from one of their parents by virtue of relocating to another country would essentially make the other parent an absent figure in their lives, a virtual stranger. Whilst regular communication would assist in compensating for this loss, at this age, it is not a satisfactory replacement/alternative to regular experiential time.   …...Relocation to another country, in my opinion, essentially rules ... out [regular time between children and the ‘absent’ parent]. It is simply not practical. The children’s time with the other parent is generally reduced to a couple of weeks, once or twice a year. This is not good enough, particularly at [these children's] ages.

The mother was denied permission to relocate the children overseas to Brazil and Final Orders were made for equal shared parental responsibility and for the children to spend part of each week with either parent in Australia.

Every Case is Different

Despite the outcome in the above case, there is no "rule" against a parent re-locating to an overseas country if the circumstances warrant it.  Melbourne Family Lawyers have extensive experience in the field of international re-locations and we suggest that you contact us for specific expert advice for your unique set of circumstances.

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