Outer House permits mother who fled abusive partner to relocate to native Australia with her two sons

About this case:

• Citation:
  [2024] CSOH 21
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Wise

Both the pursuer and the defender, referred to as R and S, held parental rights and responsibilities over their children, referred to as Charlie and Derek, who were aged 6 and 4 respectively. The defender, who was born in Scotland, opposed their removal to Australia and sought orders for contact with them.

The case was heard by Lady Wise, with McAlpine, advocate, appearing for the pursuer and Laing, advocate, for the defender.

Abusive and threatening

The parties moved to Scotland together, but not to the area where the defender grew up, in early 2020 after both children had been born. Throughout the relationship the pursuer was employed with a banking group, most recently as a senior manager, while the defender moved between different jobs and was not in stable employment.

For some of the parties’ relationship the defender was a functioning alcoholic but as his mental health declined, he began drinking alcohol more heavily. He was frequently drunk at home and used abusive language to the children and engaged them in inappropriately rough play. In January 2023 he was taken into police custody and was released on bail with special conditions prohibiting any contact with the pursuer or with Charlie, who had made allegations about his conduct to his teacher.

In her evidence, the pursuer said that the defender had been abusive and threatening towards her while they lived in England and frequently demanded money from her. He had threatened her with a knife, asked the children to hit him and threatened to send another child to beat up Charlie. She moved to a Women’s Aid refuge with the children in early 2023 as she was fearful of what the defender would do to them if they remained at home.

Evidence was also provided by the pursuer’s brother, SG, that the family would be able to live with him in Canberra and could be enrolled into a local school. Neither the pursuer nor her brother ruled out the defender having a continuing relationship with the children, and it was stated that they would support online contact. The defender, who had commenced treatment for his alcohol issues and had been sober for 8 months at the time of the case, sought to maintain physical contact and opposed relocation.

No witnesses in support

In her decision, Lady Wise said of the pursuer’s evidence: “It was evident that she remains distressed by her experience of living with S and of the circumstances in which she and the children came to depart the family home. Her recall of events was excellent and she was prepared to make concessions where appropriate. For example, she did not rule out a relationship between S and the children in future and she accepted readily that acknowledgement of him as their father would be important for the boys.”

In contrast, she said of the defender: “He vacillated between apologising for his past behaviour and seeking to apportion blame to the pursuer for the couple’s unhappiness. He was cagey when it suited him and garrulous when trying to make a point. I do not wish to underestimate the difficulty for him in giving evidence in a formal setting when his mental health remains poor. He is clearly an intelligent person who has been beset by poor mental health and addiction. However, he called no witnesses in support of his account of events.”

Noting that the couple had considered relocating to Australia before, Lady Wise said: “As Canberra is her home city, the pursuer would find it easy to resume connections with friends and to provide a social environment for the children. I accept that her employment prospects in Canberra are good. Accordingly I reject the defender’s contention that a move to Australia would provide uncertainty or instability for the boys in terms of living arrangements.”

She said of the defender’s opposition to the move: “I accept that the defender loves his sons and is anxious to maintain contact with them. He was sometimes involved in their early care. While I am not able to conclude that it would best promote Charlie and Derek’s welfare to see their father at the moment, I consider that the matter should be revisited once they are living in a happy and secure environment. It may be that some contact could be initiated using FaceTime or a similar medium. Much will depend on the defender’s state of sobriety and his mental health.”

Lady Wise therefore concluded: “I intend to make a specific issue order permitting R to relocate to Australia with Charlie and Derek. I will impose an interdict for an indefinite period. I will also make an order for photographs and welfare information to be provided by R to the defender’s mother. No orders will be made formally until the frequency and arrangements for the provision of that welfare information, together with all questions of expenses, which I meantime reserve, have been discussed at a hearing that will take place in early course.”