Caroline Overington | July 15, 2009
A FAMILY Court magistrate has ruled that the right of two young children to have a meaningful relationship with their father is more important than the unhappiness of their mother, who wanted to relocate them from Sydney to Melbourne following the breakdown of their marriage.
A woman's right to start fresh after divorce -- colloquially known as the "happy mum, happy child principle" -- has long been used by lawyers acting for mothers in Family Court matters.
For at least a generation, lawyers have successfully argued that a mother who was settled and happy in a new life was more beneficial to a child than frequent contact with the children's father.
The most recent relocation case to come before the Federal Magistrates Court shows how far the ground has shifted.
The case, known as Beaufort and Beaufort, involves a couple who married in 1991 and have two children, aged 6 and 8.
The couple separated in March 2005, and in July 2005 the father announced he was in a new relationship with his personal assistant. They purchased a "knock-down" property and built a five-bedroom house on the site. They are now engaged, and planning to have more children.
The mother, 46, who moved to Sydney with her husband in 2001, wants to move back to Melbourne, where she is part of a large Italian family, including four siblings, grandparents, aunts and cousins.
She told the Federal Magistrates Court, sitting in Sydney, that she was miserable and isolated in Sydney, watching her ex-husband and his new girlfriend get on with their lives, while she was stuck in a "holding pattern".
She recognised the children were close to their father, but said he was wealthy and could fly to Melbourne on weekends to see the children.
He objected to this idea, saying he would have to stay in a serviced apartment, with none of the children's toys around, in an artificial environment.
The mother's legal team raised the case of Taylor and Barker (2007), in which the Family Court allowed a mother to relocate her son from Canberra to the Atherton Tablelands in north Queensland, so she could marry another man.
The magistrate in that case said the relocation was in the best interests of the child, in part because it would make the mother happy. There was evidence that father and son had a close and loving relationship, but the magistrate was concerned with the mother's "happiness and contentment".
The magistrate in the Beaufort case said changes to the Family Law Act meant the court must apply the presumption that a child's best interests were served by having a relationship with both parents, ahead of the mother's happiness. Under questioning, the mother agreed that the children's relationship with their father was more important than their relationship with her extended family.