GENERAL ENQUIRIES13 535 57
WOLLONGONG(02) 4221 9311
SHELLHARBOUR(02) 4295 8400

Insights

The Court is forced to juggle the need for the children to have a meaningful relationship with both parents with the obvious distance and logistics that may hinder such a relationship and the desirability of the parents being able to live where they wish.

In relocation cases, the child’s best interests is the paramount (but not sole) consideration of the Court. The Court must also consider the rights of the parents to choose where they wish to live, but parental interests may have to give way where the child’s interests conflict. The Court is not bound by the parties’ competing proposals as to future residence, the Court has discretion to make alternative orders if they are seen to be the best alternative. Two recent cases highlight the need for the Court to strike the right balance.

Interstate Relocation

In the recent case of Whiteside & Whiteside [2014] FCCA 818, the Federal Circuit Court of Australia made urgent interim parenting orders where the mother relocated to Queensland without consulting the father who continued to reside in New South Wales. The father sought orders for the children to return to New South Wales but the mother sought to remain in Queensland, permanently with the children.

There were four children to the marriage, aged 7 ½ years, 6 years, 2 years and 8 months respectively. One reason for the mother’s relocation was that only hospitals in Melbourne, Sydney or the area she moved to in Queensland could carry out the surgery she required. Justice Neville bluntly described the situation as putting ‘a gun to the head of the Court (and the father also)’.

The Court found that given the mother’s unilateral decision to relocate herself and the children interstate, it is now impossible for the parents to come to any resolution of the dispute. Further, the Court was critical of the mother’s argument for certain terms and conditions to be placed on the time the father was to spend with the children by reason that the father had not spent time with the children recently, especially given that the reason for the lack of contact, was the mother’s unilateral decision to move herself and the children interstate.

The Court made interim orders that the two older children return to their Father in New South Wales and the two younger children remain with their mother in Queensland. The matter was set down for hearing at a later date. In coming to the decision, the best interests of the child was the paramount consideration as in all parenting matters. The Court prioritised the importance of children having a meaningful relationship with their parents and the need to protect the children from any physical or psychological harm.

Relocation Overseas

In the recent case of Eades and Wrensted [1014] FCWA 15, the Family Court of Western Australia made parenting orders that allowed the mother to relocate herself and the children (aged 10 and four) for 18 months to Thailand.

The mother’s new partner obtained employment in Thailand on a temporary basis. The mother planned to spend a maximum of 18 months in Thailand with her new partner and the children, with regular visits to Australia over this period. The father was opposed to the temporary relocation for issues such as:

  1. the security of the children because of the political unrest in Thailand at the time;
  2. that the mother would not foster a close and loving relationship between the children and himself;
  3. that the proposed travel between Thailand and Australia would have an adverse effect on the children; and
  4. that the children’s schooling would be adversely affected and that the children would feel isolated from their friends and family whilst in Thailand.

The Court found that it was in the best interests of the children for the temporary move to Thailand to proceed. Although the children spent a great deal of time with their father since the separation and had a close and positive relationship with him, the mother was their primary caregiver and source of comfort and security. Justice Neville found that the father’s personality and behaviour, in particular his derogatory communications with the mother, made him significantly less capable than the mother of providing for the children’s emotional and psychological needs. The Judge was satisfied that the children would adequately cope with the significant changes in their lives arising from the temporary move. The mother’s desire was found to be both reasonable and understandable.

Conclusion

Since the 2006 amendments to the Family Law Act, it has become much more difficult for parents to relocate where the children live with them and the move will result in reduced time or no time with the other parent. The Court will decide each case on its own facts and the best interests of the children will be a strong deciding factor.