Posted by Heidi Deason, Solicitor
What is relocation?
Following separation, parents are increasingly relocating from the town or city in which they lived during their relationship. The children may live with one or both of the parents and one parent subsequently proposes to relocate with the children. The Family Law Act 1975 (Cth) ("the Act") does not expressly address relocation and accordingly the issue has increasingly become the subject of dispute in Court proceedings.How have the Family Law Courts historically dealt with these disputes?
As the Act does not specifically address relocation, the Family Law Courts (the Family Court and Federal Magistrates Court) apply general parenting order principles under Part VII of the Act.
Firstly, the Court in deciding whether to make a parenting order (including whether a parent should relocate) in relation to the child must regard the best interests of a child as the paramount consideration . This will always be considered along with the presumption that it is in a child's best interest for both parents to have equal shared parental responsibility for the child . This presumption will be rebutted if there are reasonable grounds to believe that a parent (or a person who lives with the parent) has engaged in abuse of the child (or another child in the family) or family violence .
A Court will therefore consider the child's best interest in deciding whether one parent is permitted (or restrained) to relocate.
How does the Court determine what is in a child's best interest?
In deciding what is in the best interests of the child, the Court will take into account two tiers of considerations:
a) Primary considerations:
• the benefit to the children of a meaningful relationship with both parents; and
• the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence) .
b) Additional considerations:
• the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding;
• the child’s relationship with each parent and other people, including grandparents and other relatives;
• the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
• the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives;
• the practical difficulty and expense of a child spending time with and communicating with a parent;
• each parent’s ability (and that of any other person) to provide for the child’s needs;
• the maturity, sex, lifestyle and background of the child and either of the parents;
• the right of the child to enjoy their cultural background, including maintaining their connection with that culture;
• the attitude of each parent to the child and to the responsibilities of parenthood;
• any family violence involving the child or a member of the child’s family;
• any other fact or circumstance that the court thinks is relevant . The Court must also consider the extent to which each parent has or has not previously met their parental responsibilities as well as any events or circumstances since separation .
Recent Developments:
The High Court decision of MRR V GR (2010) - ("MRR")The recent case of MRR v GR (2010) 240 CLR 461 ("MRR") has altered the way in which the Court has historically decided the issue of relocation. The case was initially heard in the Federal Magistrates' Court before Federal Magistrate ("FM") Coker. At that time, both parents resided in Mt Isa and the child was living with both parents on a week about basis ("equal time"). Both parents were originally from Sydney and had moved to Mt Isa during their relationship to allow the father to pursue employment.
The mother made an Application to the Court to return to Sydney with the child. The mother was living in a caravan park in Mt Isa while the father remained in the former matrimonial home. The mother informed the Court that quality affordable rental accommodation in Mt Isa was scarce and she had limited employment opportunities there. The Court found that the mother was despaired about residing in Mt Isa and felt isolated from her family. Coker FM found that these issues could be dealt with through counselling and accordingly found that the child (and consequently the mother) should remain in Mt Isa. The father informed the Court that he would not move from Mt Isa and therefore the only way to continue equal time with the child was for both parents to remain in Mt Isa.
On appeal, the High Court decided that Section 65DAA(1) of the Act requires the Court to consider these questions:
A) Whether it is in the best interests of the child to spend equal time with each of the parents; AND
B) Whether it is reasonably practicable that the child spend equal time with both parents.
If both of the above questions are answered in the affirmative, then it is open to the Court to make an order with equal time. Therefore, if the Court is satisfied that it is not reasonably practicable for a child to spend equal time with both parents, then it is not open to the Court to make such an order. In this instance, an order for equal time would only be reasonably practicable if both parents remained in Mt Isa, Coker FM should have considered the circumstances of the parties (more specifically, the mother) in determining whether equal time was reasonably practicable.
In this case, if the mother was to live in Sydney, equal time would not be reasonably practicable and accordingly it would not be open to the Court to make such an order. The Court would next need to consider the child having substantial and significant time with the parent whom the child did not live with. The High Court allowed the mother's appeal and set aside the Orders of the Federal Magistrates Court. The matter was then remitted back to the Federal Magistrates Court to be reheard.
Full Court of the Family Court Cases
Vanderhum & Doriemus [2011] famCAFC 100 (6 May 2011)
The mother resided with the children in a rural town in New South Wales. The father resided in Sydney, 250 kilometres away. The father made an Application to the Court seeking time with the children for eight days each fortnight and half of the school holidays. The father also sought that this time occur on the basis that the mother reside with the children within 25 kilometres of the school in Sydney, selected by the father. The father's appeal to the Full Court of the Family Court was dismissed on the basis that equal time was not in the children's best interests or reasonably practicable.
Deiter & Deiter [2011] famCAFC 82 (12 April 2011)
The parents lived in Sydney during their relationship and following separation (and an incident of family violence), the mother returned with the children to Perth in Western Australia. The mother's family resided in Perth and she had resided there prior to commencing a relationship with the father. An interim parenting order was made compelling the mother to return to Sydney pending the final hearing of the matter. An appeal against the interim order was allowed as too much weight was afforded to the father having a meaningful relationship with the children pending a final hearing.
Forbes & Barlow [2011] FamCAFC 76 (7 April 2011)
The parents commenced a relationship on the Gold Coast in their early twenties. The relationship ended when their child was 7 months of age and when the child turned 8 months, the mother relocated to the Sunshine Coast where her parents and sister resided. The Court found that the mother (who was in receipt of Centrelink benefits) required support from her family and did not have her own resources to sustain accommodation on the Gold Coast. Wilson FM found that the father should spend time three days each fortnight with the child and have two other visits, and that the mother should return to the Gold Coast when the child turned three. The Full Court allowed the appeal as they were not satisfied with the FM's consideration of what time was reasonably practicable.
Sigley & Evor [2011] FamCAFC 22 (10 February 2011)
In this case, the mother was the primary carer of the child and sought to relocate from a country town in southwest Queensland to north Queensland. The father sought time with the child every second weekend. The Full Court considered the concept of a "meaningful relationship" between the father and child, and concluded that there was no reason on the evidence why the father could not have a meaningful relationship with the child if the move was permitted.
Hepburn & Noble [2010] famCAFC 111 (21 June 2010)
The mother made an application to the Court that she be permitted to relocate with two children from Wollongong where both parents lived, to Victoria. The mother was found to be unhappy and bitter if she was not permitted to relocate to Victoria. The mother sought relocation in order to pursue a new relationship. The Court granted orders permitting the mother to move with the children.
Factors to be considered in whether the Court will allow relocation
Existing parenting arrangementsThe recent cases in the Family Law Courts demonstrate that even if existing parenting arrangements are for equal time, the parent applying to relocate may still be successful. This will be the case especially where the parent relocating is found by the Court to be the primary carer of the child.
Reasons for relocating
Although the best interests of the child will be the determining factor, the Court will invariably consider a parent's reasons for relocating. The reasons may include moving to be closer to family (for support), family violence, improved employment opportunity or to improve psychological wellbeing. The parent's reasons for opposing the relocation may also be examined by the Court.
Unhappiness, depression, inability to cope
The state of mind and mental health of the parent wishing to relocate will be a highly significant issue. Especially if the parent relocating is the primary carer and has the child residing with them, the Court will consider whether in refusing their request to relocate, the parent's mental health would compromise their ability to parent. Consequently, this would effect the best interests of the child and is a major consideration for the Court.
For some parents, financially maintaining themselves and the child following separation is difficult. Parents may not have access to the same amount of funds that they had previously while in a relationship. Accordingly, they may seek to relocate for the simple fact that living in the area (or perhaps away from their family without support) is no longer financially viable. It is also a consideration for the Court that if they did permit a parent to relocate, whether that parent is able to continue facilitating time with the non-relocating parent. This will be where the Court considers what time is reasonably practicable, given all the circumstances involved.
Conclusion
Following the decision of MRR V GR (2010), parents are finding it difficult to successfully oppose relocation. This is largely due to the Court's interpretation of the Act in that case, namely that the Court must consider whether time with the parents (whether it be equal or substantial and significant time) is reasonably practicable, before that order can be made. If the time proposed is not reasonably practicable, then it is not open to the Court to make that Order.
The practical consequence of this case is that despite parents in some instances residing in the same area and spending equal time with their child, one parent may decide to relocate. Depending on the circumstances (including distance), if equal time (or substantial and significant time) is no longer reasonably practicable, the Court is not able to make an order that the time continue. The Court has shown hesitancy to restrain a parent from relocating, especially if the reasons outlined above in paragraph 4 indicate that the child's best interests coincide with the relocation. Although relocation is frequently contested, it is increasingly difficult for a non-relocating parent to successfully oppose relocation of the other. It is therefore recommended that detailed and accurate legal advice is obtained prior to contesting relocation, as it will involve significant litigation costs for what may be an inevitable result.
*For further information please contact Heidi Deason of Cosgriff Orchard Legal on (03) 5480 6344
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