Federal Circuit and Family Court of Australia (Division 1) – Heard in Canberra
The Case
This child custody case involved two children who had been living with their father in Australia under parenting orders made in 2016, while their mother resided in the United States.
When the children began showing signs of serious emotional trauma, including expressions of self-harm and strong, repeated wishes to live with their mother, the mother applied to have the parenting arrangements changed and to permanently relocate the children to the USA.
The father opposed any change, arguing the original orders should remain in place under the legal principle established in Rice v Asplund (now section 65DAAA), which requires a parent to demonstrate a significant change in circumstances before a court will revisit existing parenting orders.
The Court found that the children’s deteriorating psychological wellbeing, including one child’s self-harming behaviour and expressions of suicidal ideation, represented exactly the kind of significant change that justified reopening the parenting arrangements.
Despite acknowledging serious concerns about the mother’s conduct during the proceedings, the court concluded that keeping the children in their current situation carried a greater risk of ongoing and worsening harm.
The mother was granted sole parental responsibility and permission to permanently relocate the children to the United States, with detailed orders put in place to protect the father’s ongoing relationship with the children, including regular parenting time, communication rights, and passport and travel provisions.
Key Takeaway
This case demonstrates that Australian family courts will revisit existing parenting orders, even recent ones, where a child’s emotional or psychological wellbeing has significantly deteriorated.
The child’s best interests remain the paramount consideration, and evidence of trauma, self-harm risk, or a dangerous trajectory can be sufficient to justify a major change in living arrangements, including international relocation.
