The complexities of modern family relationships

Family Law|November 20th 2014

The complexities of modern family relationships were clearly demonstrated in the recent child abduction case C v S involving, as it did, multiple relationships and movement across the globe.

Briefly, the facts of the case were as follows. The father was born in the UK but is now habitually resident in Australia, and the mother is a UK national. They began their relationship in 1997 and separated in 2003. They did not marry. There is one child of the relationship, ‘L’, a boy born in 2000 and therefore now aged 14. After the separation, L lived with his mother in England and had regular contact with his father.

In about 2007, the father moved to live in Australia having met the person who was to become his future wife on a trip there in 2005. Meanwhile, the mother became involved with another man, who she subsequently married. Together they have two children, a boy who is nine and a girl almost four. In late 2008, the mother, L, her husband ‘H’ and their first born child moved to Australia, where H had secured employment. L then had staying contact with his father every third weekend.

In the early summer of 2011, the mother, her husband and the children came to England so that he could fulfil a work assignment. According to the father, the expectation was that they would return within 3 months. However, they did not go back to Australia until the spring of 2012. The mother claimed that there had been no talk of the trip being for a limited time such as three months, and said that she did not want to return to Australia, but only did so at her husband’s insistence.

The mother’s relationship then broke down and she and her husband separated in December 2013. The mother and the children remained in the matrimonial home.

In May 2014, the maternal grandmother who lives in England asked the mother if she would like to take a holiday in England “to have a break.” The mother agreed, and travelled here with the children on the 2nd of June. At some point the mother decided to remain here with the children permanently, and when the father found out about this he made an application under the Hague Convention for L’s summary return to Australia.

Meanwhile, matters were complicated by divorce proceedings in Australia between the mother and her husband, H. In those proceedings H accepted that his children would live in England and that he would not make an application for their summary return.

Accordingly, the mother’s defence to the father’s application for L’s return to Australia was based primarily upon an envisaged separation between herself and L if a return order was to be made, as neither she nor his siblings would be going back to Australia. She claimed that there was a grave risk that L would suffer physical or emotional harm if he was forced to return to Australia.

The case was heard by Mrs Justice Pauffley in the High Court. She considered the risk to L both should the mother return to Australia with L (as she had indicated to L she would), and should she not. In either event she did not find that there was a grave risk of harm to L. The mother’s defence was not therefore made out, and accordingly Mrs Justice Pauffley ordered that L be return to Australia, despite the fact that she was in “no doubt that it will be extremely inconvenient for the mother to rearrange her life in the way that an order for summary return will require”.

This case clearly demonstrates the difficulties that can be involved in complex modern family relationships, and the challenges for the legal system(s) faced with the task of resolving those difficulties.

Photo of the Sydney Opera House in Australia by Hai Linh Truong via Flickr

Author: Stowe Family Law

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