Moving your children to another city? Check with your family lawyer first.
When a relationship breaks down, it can take its toll on everyone involved, and not just the former spouses. However, most separating parents understand the need to insulate their children from the break up, and often reach sensible resolutions without the intervention of the Courts to determine whom the children live with and the time they spend with the other parent. Sometimes, parents cannot agree, and find that going to Court is the only realistic option to resolve a dispute.
Cases where the parties are unable to reach agreement usually involve one parent proposing to make a big change in the children’s lives. One of the most common situations where such difficulties become real issues between parents is when the parent with whom the children live expresses a desire to relocate, with the children, to another city or country.
When faced with such cases, the Courts do not apply any sort of special guidelines, but direct their attention to the ordinary consideration of the child’s best interests. But relocation cases do have their own problems given the nature of the changes proposed. As the Chief Justice of the Family Court of Australia, Diana Bryant, remarked:
Relocation cases are the hardest cases the court does, unquestionably. If you read the judgments, in almost every judgment at first instance and by the Full Court you will see the comment that these cases are heart-wrenching, they are difficult and they do not allow for an easy answer. Internationally, they pose exactly the same problems as they pose in Australia. I have heard them described as cases which pose a dilemma rather than a problem: a problem can be solved: a dilemma is insoluble.
Adjudicating on a relocation case requires the Court to embark on a very delicate juggling exercise. In ordinary children’s matters where relocation is not an issue, the Court will attempt to make orders that serve the children’s best interests, as that is the paramount consideration. However, where relocation is an issue, the Court not only addresses the children’s best interests, but also looks at a number of other factors, including the relocating parent’s happiness, or the children’s cultural background or heritage to name a few. Reconciling these factors can difficult. As Kent J observed in Heath & Hemming (No 2), relocation cases ‘bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents.’
MRR v GR: The Reasonable Practicality Requirement
There are few High Court decisions dealing with relocation, and only one following the significant amendments to the Family Law Act in 2006. In MRR v GR, the High Court was asked to review the decision of a Federal Magistrate who did not allow a mother to relocate her 4 year old daughter from Mount Isa, Queensland, to Sydney.
In MRR v GR, the parties commenced living together in Sydney in 1993, and moved to Mount Isa in January 2007, with their 4 year old daughter, so that the father could pursue employment as a mechanical engineer with a mining company. In August 2007, the parties separated and the mother moved back to Sydney with the child. On application by the father, interim orders were made on 17 October 2007 that the child return to Mount Isa pending final orders. Following the final hearing, Coker FM ordered that both parents have equal shared responsibility and that the child spend equal time with each of them. Meaning the mother’s application to relocate her daughter to Sydney was dismissed. On appeal to the Full Court, the Federal Magistrate’s decision was upheld.
The High Court subsequently allowed the mother’s appeal, noting that the trail judge at first instance erred in his judgment, and the Full Court failed to identify those errors. The thrust of the High Court’s judgment dealt with the trail judge’s erroneous treatment of Section 65DAA which requires the Court to consider:
1. whether the child spending equal time with each of the parents would be in the best interests of the child; and
2. whether the child spending equal time with each of the parents is reasonably practicable.
The High Court, in a unanimous judgment, observed that in approaching the first question as the sole and determinative one, and subsequently failing to give any consideration to the second, the Federal Magistrate erred in his application of section 65DAA. As a matter of statutory interpretation, the Federal Magistrate was obliged to consider whether the child spending equal time with each parent was reasonably practicable once he had found that equal time was in the child’s best interests. The High Court was of the opinion that, had the trail judge directed his attention to the second stage of section 65DAA as he was obliged to do, it would have been clear that equal time was not reasonably practicable, and he should have allowed the mother to relocate her daughter to Sydney. The evidence before the Federal Magistrate was that:
1. The mother’s accommodation, where the child would reside on alternate weeks, was at a caravan park, with limited facilities and ‘it could not be said that such an environment is usually ideal for a child.’
2. The mother’s employment opportunities were very limited in Mount Isa.
3. The mother was despondent about living in Mount Isa, and on the evidence of a Family Consultant was depressed and in need of counselling.
The matter was remitted to the Federal Magistrates Court for rehearing.
Relocation cases are treated in the same way as any other children’s matter, but returning to the Chief Justice’s comments above, they are difficult cases for children, parents, lawyers, and judges alike given the implications of the proposed relocation.
But failing agreement between parents, the Courts are nevertheless tasked with the responsibility of deciding such cases, and in doing so, the Court considers whether equal time is in the child’s best interests, and if answered in the affirmative, whether equal time is reasonably practicable.
If the Court is satisfied that equal time is in the child’s best interests and is reasonably practicable, it is must consider making orders for the child to spend equal time with both parents, which would clearly be in direct contradiction to any sort of relocation.
At Diamond Conway Lawyers, our family law specialists have the necessary experience and skill to deliver sound and timely advice to our clients, ensuring that their interests and those of their children are meticulously represented. If you have any issue concerning your children, or a child in your care, a member of our team would be happy to take your call on 02 9222 8000 and discuss your issue with you and endeavour to assist you with practical advice.