The growing dilemma of international child custody cases

Published June 30, 2016 by Ashlee T. Bowman

shutterstock_217784980With more and more opportunities available for individuals and families to travel and work overseas, the Family Courts are increasingly hearing applications for children to relocate internationally with one parent.

There are a myriad of factors that the Court must take into consideration when hearing such applications.

On 3 June 2016 the Full Court of the Family Court of Australia delivered its decision in the international relocation case of Zahawi & Rayne.[1]

In this case the father appealed the trial judge’s orders restraining him from relocating the residence of his two children, aged six and four, from Australia to Dubai.

The mother and father separated in August 2012, at which time the children were aged four years and 16 months.  Post-separation the mother left the children in the father’s care for the first 13 months, whilst she moved overseas to be with her parents. During that period the mother did not see the children and had very little communication with them.  When the mother returned to Australia in September 2013, the father insisted on very limited, supervised time between the children and the mother.

The father remarried in October 2013. His new wife has two children of similar ages to the subject children.

The father accepted a job opportunity in Dubai after nine months of unsuccessfully searching for employment in Australia. At the time of the trial, he had already been living in Dubai for several months, whilst the children remained in Australia with his new wife and her children.

The children were represented by their own independent children’s lawyer (“ICL”).

The court was asked to consider the competing proposals of each the father, mother and the ICL. Specifically:

1. The father proposed that the children be permitted to live with him (and his new wife and her children) in Dubai and that the children spend time with the mother both in Dubai and Australia for three weeks in each year. He also proposed regular Skype and ‘electronic time’. If the court did not permit the relocation, the father proposed that the children remain living with him in Melbourne and they spend graduating time with the mother, leading up to alternate weekend.

2. The mother proposed that the children remain living in Melbourne and that after six months a family report be prepared and the matter listed to consider the mother’s application that the children live with her (in Australia). In the meantime, the mother proposed that the children spend alternate weekends with her, two afternoons each week and half school holidays. If the father was permitted to relocate the children’s residence to Dubai, the mother proposed that the children spend time with her in Australia for 10 weeks in each year as well as frequent ‘electronic time’. She also proposed that the father pay a bond of $250,000 to secure the father’s compliance with the orders.

3. The ICL proposed that the children remain living in Melbourne with the father and that they spend graduating time with the mother, similar to the mother’s proposal. If the father was permitted to relocate the children’s residence to Dubai, the ICL proposed that the children spend five weeks in each year with the mother together with regular ‘electronic time’. The ICL further proposed that the father pay a bond of $30,000 to ensure his compliance.

As in all relocation cases the court was required to measure each party’s proposal against the criterion of the best interests of the children but, subject to procedural fairness considerations, was ultimately at liberty to make orders that differed from the orders sought by each party.

In its examination of the facts and competing proposals, the court found:

  • The children had lived with the father for about three years before he left for Dubai
  • The children had settled into their blended family with the father, step mother and step siblings.
  • The children expressed a wish to continue living with their father.
  • The children had spent only sporadic, supervised time with the mother from the time of their parents’ separation.
  • The family would be in a better financial position as a result of the father’s employment in Dubai.

While the above factors favoured the father’s application to relocate, they were outweighed by the following factors:

  • The conflict and level of distrust between the parties is of such an intensity that they would be unable to share parental responsibility.
  • Historically the father had adopted a very restrictive stance with regard to the children’s relationship with the mother and if he took a similar attitude if the children were to live in Dubai, there is no guarantee the mother could enforce the orders.
  • If the children were permitted to relocate the mother would be unable to travel to Dubai to spend time with them, as she would not feel safe (following an historical incident of physical violence by the father against her in Dubai where her complaints to the police were mismanaged). The mother’s time with the children would need to take place in Australia.
  • If permitted to relocate, it would be difficult for the children at their particular ages and stages of development to have the opportunity to foster, develop and maintain a relationship with their mother.

The court ultimately dismissed the father’s appeal and upheld the trial judge’s orders restraining the relocation. Each party was ordered to pay their own costs.

Undoubtedly the father’s move to Dubai and failure to secure the court’s permission to relocate the children’s residence, only for him to have to return to Australia and look for new work would have caused upheaval to the children.

This case is a plain reminder of what the High Court said almost 14 years ago in the case of U v U[2] (at a time when the world was perhaps less globalised than what it currently is):

The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choic

[1] [2016] FamCAFC 90

[2] [2002] HCA 36

 

The post The growing dilemma of international child custody cases appeared first on Jones Mitchell Lawyers.

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