Family law news: Mother wins court battle to take son to Australia

Family law news: Mother wins court battle to take son to Australia

A recent case in the Court of Appeal testifies to the struggle parents from different countries go through when they split up and one of them wants to return to their home country.

The case in question — — involved a mother who wished to raise her five-year-old son in Perth, Australia, and a father who wanted the boy to remain in England.

The mother, aged 45, and father, aged 44, married in 2004. The father left the family home in Windsor in June 2008 and a decree absolute of divorce was pronounced in October 2008.

Since that time, the mother has assumed primary day-to-day care for the child and continued to live in the home in Windsor. Meanwhile, the father has had no settled home.

The father did not seek custody and said he was happy for the boy to remain primarily in the care of the mother.

The only issue before the judge was whether mother and son should continue living in Windsor or be allowed to relocate to Perth — where the mother has family connections and lived for approximately 18 years before moving to England in 2000.

At first instance, a county court judge in Reading gave the mother permission to take the boy to Perth.


The father appealed on four grounds.

The first ground related to the judge’s failure to obtain a report from the Children and Family Court Advisory and Support Service (Cafcass) before authorising relocation. The Court of Appeal found that such reports are “by no means invariably prepared” and in this case would have been of limited use.

The second ground related to the child losing contact with two half-brothers, aged 16 and 13, from the father’s previous marriage. The Court of Appeal attached little importance to the relationship, however, because the half-brothers would “soon be adults and probably be living away from home”.

The third ground of appeal concerned the mother’s mental health. The father said a “substantial motive” behind the mother’s application to leave the UK was to eliminate or at least curtail his relationship with their son. He also drew attention to the fact that she had been admitted to a psychiatric ward for depression shortly after the birth of their son in 2000. The Court of Appeal held that the judge at first instance clearly took these facts into account before making his decision. The admission to the psychiatric ward was over five years ago. Moreover, there was sufficient material before the judge to allow him to arrive at the conclusion that it was not the mother’s motivation to emigrate solely to curtail the father’s relationship with his son. Most persuasive, the father allowed her to assume full care of the child, with negligible assistance from himself, with no complaints about her mental condition until she decided to relocate.

The fourth ground related to the judge’s failure to issue an order for contact. The Court of Appeal said this was not required since the English court in allowing the mother to leave for Australia essentially surrendered its control over the child to a foreign court, which would henceforward have sole discretion to decide contact.


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