Relocation of Children Overseas When The Other Parent Opposes

Background

In the recent case of Ellis & Murphy [2018] FamCA 468 (22 June 2018) the mother argued that she felt isolated and wanted to go back to the country where her family was (taking the children with her permanently). She also complained about verbal intimidation from the father.

In this case, both of the parents were from the UK, and had moved to Australia separately. They began living together in 2009, separating in 2015. They had two children, who were 4 years and 7 years old by the time of the court trial. Both of the parents agreed in principle that the children should live with mother and spend time with father.

Issue

Whether the mother could relocate with children to the UK?

Court Analysis

The parties were unable to co-parent effectively as they had vastly different parenting styles and did not trust one another. The father filed changeovers “just in case” the mother made false accusations against him. Also, the mother alleged family violence based on her evidence that the father would raise his voice in arguments and she felt scared by that (but the judge found “the parties have not been involved in family violence but just conflict”).

The mother argued that the children could maintain a strong relationship with their father, even if they were overseas (e.g. Skype, etc) but the judge disagreed, saying it was ‘possible’ but not ‘probable’.

The mother had myriad reasons for returning to UK but mainly that she felt isolated from her family and wanted to avoid conflict with the father, which the court determined was just different parenting styles.

The children were too young for their expressed wishes to be given substantial weight, but the eldest did indicate that he wanted to stay in Australia.

Orders

In the end the children were ordered to stay living in Australia, live with the Mother, and spend substantial time with the Father.

Although the mother got sole primary responsibility for long term decisions about the children in addition to primary care, she was refused relocation of the children overseas.

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