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Relocation and Children
Family law cases often involve difficult issues for a court to resolve. Some of the most difficult cases relate to relocation, where one parent seeks to relocate with their child to a new place in Australia. Relocation cases are especially difficult as an obvious result of permitting one parent to relocate is that the other parent will have diminished access to their child.
The governing legislation is the Family Law Act 1975 (Cth). The Act stipulates that the court must have regard to the best interests of the child as the paramount consideration when making an order in relation to that child. As it can be very difficult to determine what is in a child's best interests, the Family Law Act sets out factors for a court to consider. This is particularly significant in relocation cases, as one of the two primary considerations in determining a child's best interests is ensuring that both parents are meaningfully involved in their child's life. The other primary consideration relates to protecting a child from exposure to harm or abuse.
Some of the additional considerations set out in the Family Law Act to assist the court in determining what is in the best interests of a child are as follows:
In Godfrey & Sanders, [2007] FamCA 102, the Family Court of Australia recently considered an appeal against orders made by a federal magistrate restraining the mother from relocating with two children more than 200 kilometres from the Melbourne CBD. The mother's appeal was also supported by the independent childrens lawyer.
The parties commenced living together in 1992, were married in 1994 and separated in 2001. There were two children of the marriage. The mother also had two children from a previous relationship living with her. By consent order, the children resided with the mother. The father had contact every third weekend with additional contact over the holidays.
The mother proposed moving to Brisbane. She was keen to move to a warmer climate and to a city where there was an established congregation of her particular church. Both parents had initially been long-standing members of the church, although the father had left the church in 2001. The mother offered to arrange for the children to fly down from Brisbane to see their father on one weekend per month, with additional visits over the school holiday periods. The mother offered to be responsible for the necessary airfares, although the federal magistrate was critical of the mother's commitment in this respect, owing to the modest means of both parents.
The father objected to the relocation to Queensland due to the effect it would have on the children in terms of traveling times and on his opportunity to take the children to visit his family who lived three hours' drive from Melbourne.
The court noted that although the legislation required that primary consideration be given to the benefit of the child having a meaningful relationship with both parents, the legislation did not prescribe how that meaningful relationship was best promoted in the circumstances of any one case.
In the present case, the appellate judge found that all the evidence clearly indicated that the children had already established a meaningful relationship with their father and that this relationship would likely be maintained even if the mother relocated to Queensland. The court found that even if the move resulted in a diminution of the quality of the relationship, the legislation aspired to promote a meaningful relationship rather than an optimal one.
The appellate judge found that the federal magistrate erred in failing to explore adequately the possibility of formulating different arrangements for the children to spend time with their father and in reaching a conclusion, contrary to the evidence, that the children would be unable to maintain a meaningful relationship with their father if the mother was permitted to move the children to Brisbane. The court found that the magistrate also erred by concluding that continuing the contact at its present level was more significant to the welfare of the children than allowing the primary caregiver to get on with her life as she chose and to endeavour to maximize the opportunities for the children to be adequately supported.
The court allowed the mother's appeal and made an order permitting the mother to relocate to Queensland. In order to address some of the practical difficulties of access, the court, in a somewhat creative solution, ordered the mother to deposit $20,000 into a secure fund, to be used to pay for the children's airfares to visit their father on at least four occasions each year, and to pay for the father's airfare to visit the children on at least two occasions each year.
The governing legislation is the Family Law Act 1975 (Cth). The Act stipulates that the court must have regard to the best interests of the child as the paramount consideration when making an order in relation to that child. As it can be very difficult to determine what is in a child's best interests, the Family Law Act sets out factors for a court to consider. This is particularly significant in relocation cases, as one of the two primary considerations in determining a child's best interests is ensuring that both parents are meaningfully involved in their child's life. The other primary consideration relates to protecting a child from exposure to harm or abuse.
Some of the additional considerations set out in the Family Law Act to assist the court in determining what is in the best interests of a child are as follows:
- the practical difficulty and expense of a child spending time with and communicating with a parent;
- the likely effect of separating the child from either parent or any siblings;
- each parent's willingness to encourage a close, continuing relationship between the child and the other parent;
- the nature of the child's relationship with each parent and with other persons (such as grandparents); and
- any views expressed by the child.
In Godfrey & Sanders, [2007] FamCA 102, the Family Court of Australia recently considered an appeal against orders made by a federal magistrate restraining the mother from relocating with two children more than 200 kilometres from the Melbourne CBD. The mother's appeal was also supported by the independent childrens lawyer.
The parties commenced living together in 1992, were married in 1994 and separated in 2001. There were two children of the marriage. The mother also had two children from a previous relationship living with her. By consent order, the children resided with the mother. The father had contact every third weekend with additional contact over the holidays.
The mother proposed moving to Brisbane. She was keen to move to a warmer climate and to a city where there was an established congregation of her particular church. Both parents had initially been long-standing members of the church, although the father had left the church in 2001. The mother offered to arrange for the children to fly down from Brisbane to see their father on one weekend per month, with additional visits over the school holiday periods. The mother offered to be responsible for the necessary airfares, although the federal magistrate was critical of the mother's commitment in this respect, owing to the modest means of both parents.
The father objected to the relocation to Queensland due to the effect it would have on the children in terms of traveling times and on his opportunity to take the children to visit his family who lived three hours' drive from Melbourne.
The court noted that although the legislation required that primary consideration be given to the benefit of the child having a meaningful relationship with both parents, the legislation did not prescribe how that meaningful relationship was best promoted in the circumstances of any one case.
In the present case, the appellate judge found that all the evidence clearly indicated that the children had already established a meaningful relationship with their father and that this relationship would likely be maintained even if the mother relocated to Queensland. The court found that even if the move resulted in a diminution of the quality of the relationship, the legislation aspired to promote a meaningful relationship rather than an optimal one.
The appellate judge found that the federal magistrate erred in failing to explore adequately the possibility of formulating different arrangements for the children to spend time with their father and in reaching a conclusion, contrary to the evidence, that the children would be unable to maintain a meaningful relationship with their father if the mother was permitted to move the children to Brisbane. The court found that the magistrate also erred by concluding that continuing the contact at its present level was more significant to the welfare of the children than allowing the primary caregiver to get on with her life as she chose and to endeavour to maximize the opportunities for the children to be adequately supported.
The court allowed the mother's appeal and made an order permitting the mother to relocate to Queensland. In order to address some of the practical difficulties of access, the court, in a somewhat creative solution, ordered the mother to deposit $20,000 into a secure fund, to be used to pay for the children's airfares to visit their father on at least four occasions each year, and to pay for the father's airfare to visit the children on at least two occasions each year.