Family law: November 2021

CHILDREN

Court did not reconcile relocation order with expert recommendation that relocation not occur until child was nine

In Denham & Newsham [2021] FamCAFC 141 (6 August 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) allowed a father’s appeal from a decision of Carew J to permit a mother to relocate with a three year old child from Australia to Belgium from March 2022.

The hearing occurred in February 2020. The orders included provision for the father to travel to Belgium at least three times a year and that the child return to Australia each year.

The Full Court said (from [28]):

‘[The single expert psychiatrist] …  gave evidence that the child was too young to sustain significant separations from his father …

[35] … [T]he single expert … did not give evidence that the child would develop the … capacity to sustain significant gaps of contact if there was an additional two years of regular contact … Her evidence was … relocation should not be considered before the child was eight or nine years of age. This evidence … was of signal importance to the central question and had to be considered. … [I]f the … judge determined that … this evidence should not be accepted, it was necessary to explain why not. … This did not occur and the challenges … have been established.  …

[51] … [T]he documents issued by the Australian Department of Home Affairs … record that the availability of regular air travel should not be assumed and … that flights have reduced.

[52] Had this evidence been placed before the … judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father … would be no more than mere speculation. … This … undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.’