The court has a positive obligation when using its discretion to make parenting orders, including where it considers making orders whether a child should relocate, so as to ensure that the child’s best interests are paramount. In order to determine this, it must consider primarily 2 issues:
(a) The benefit to the child of having a meaningful relationship with both of the parents AND
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
And In applying the considerations set out in subsection (b ), the court is to give greater weight to the consideration set out in this subsection.
This paper focuses on what in fact is a meaningful relationship and it considers this question in light of one of the leading cases in the area of law, McCall and Clark (2009) FamCAFC 92.
The facts of McCall and Clark are as follows:
1. In October 2005, the mother and child left Australia – the child was 6 months of age at that time, and travelled to Dubai where it was intended for the mother and father to marry in December 2005 and then return to Australia. The relationship broke down.
2. The father returned to Australia, mother and child remained in Dubai
3. A federal magistrate ordered that there be equal shared parental responsibility for the child, and for the child to live with the mother in Dubai.
4. The father appealed and one of his grounds of appeal was that the federal magistrate has failed to consider how the child could maintain a meaningful relationship with the father.
The Family Law Act 1975 (Cth) makes it clear that the objects of the Act is to ensure that the best interests of the child are met by:
Ensuing that children have the benefit of both of their parents having a meaningful involvement in their lives.
The principles which underlie this object are as follows:
(a) Children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, never married or have never lived together and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents )
(c) Children have a right to enjoy their culture
In McCall and Clark, the full Court, noted that the Family Law Act , does not define " meaningful" or "meaningful involvement" , as such they turned to the Macquarie Dictionary, the Shorter Oxford English Dictionary and the Acts Interpretation Act 1901 (Cth) for assistance.
The full court, cited the case of Mazorski and Albright (2007) 37 Fam LR 518 which held that meaningful is synonymous with "significant", "important and" of consequence".
A meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child. It refers to the quality of the relationship and not so much the quantitative nature of the relationship, although the amount of time that the child spends with their parents, will determine the quality of their relationship, depending of course on stages of the child’s development.
In McCall and Clark, the full Court noted that there are 3 possible interpretations of identifying and defining a meaningful relationship when considering what the legislatures intended, as follows:
(a) The court is required to consider the benefit of a child having a meaningful relationship with his/her parents by examination and assessment of the evidence before it with respect to nature of the child’s relationship with his /her parent at the time of hearing the matter;
(b) The court should assume that there is a benefit to all children in having a meaningful relationship with both their parents;
(c) The court should consider and weigh the evidence at the date of the hearing and determine, how, if it is in the child’s best interests, to frame orders to ensure that the particular child has a meaningful relationship with both parents.
It was held in McCall and Clark that the preferred option is (c) – although depending on the circumstances (a) may also be relevant in interpreting the benefit of a child to a meaningful relationship. Option (b) was rejected by the full court because they did not agree that the legislature intended to elevate the benefit of a child having a meaningful relationship to that of a presumption.
Further, it is important that when the Courts are considering the benefits of a child having a meaningful relationship with their parents, there may be instances when that benefit is not in fact positive and not in the best interests of the child to create orders to foster such a relationship.
In the case of McCall and Clark, the mother remained in Dubai, from the time the child was 6 months of age and shortly after the father returned to Australia. The matter was heard on a final basis when the child was approximately 4 years of age and at the time of the hearing there was no evidence before the federal magistrate , other than the mother and father as to the nature of the relationship between the child and his father nor was there any expert evidence about the stages of child development or attachment theory and what was required for the child to have a meaningful relationship with both parents and how that relationship could be achieved.
The matter was sent back for re trial before another federal magistrate because the full court found that in the first instance the federal magistrate did not adequately consider whether the orders made would enable the child to develop a meaningful relationship with the father.
In conclusion, for those parents seeking to argue that their child’s right to a meaningful relationship with them will be compromised if the other party is permitted to relocated must establish that having a meaningful relationship with that parent is in the best interests of the child and then proceed to provide evidence of the nature of the relationship between the child and parents, the attachment of the children (or otherwise) and propose orders which will develop (if required), facilitate and encourage the meaningful relationship between the child and their parents.
M.A Dip Ed LLB (UNSW)
Principal Family Lawyer - Cominos Lawyers
Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law. She is also a member of the SingleMum.com.au Expert Opinion Panel.Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
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