FAMILY LAW: RELOCATION A WORD COUNT: INTRODUCTION-

Transcription

1 -INTRODUCTION- An area of very little research, without specific legislative definition or recognition 1 yet it involves some of the most difficult decisions that arise in family law courts. 2 Relocation cases (where a parent has or proposes to move intrastate, interstate or internationally with the child without the other parent s consent) 3 rarely provide either parent with their desired result. The difficulty lies in determining what is in the best interests of the child which, since the 2006 amendments 4 to the Family Law Act ( the Act ), 5 has been primarily focussed on the child s right to a meaningful relationship with both parents 6 (a relationship that is important, significant and valuable to the child). 7 However, this places severe restrictions on the parent s freedom, ignores a great portion of factors contributing to the child s lifestyle and happiness, and largely limits the consideration of the child s best interests to more immediate concerns rather than long-term benefits. 8 This paper considers both perspectives. - BEST INTERESTS = MEANINGFUL RELATIONSHIP - Relocation of children by a parent following separation is considered a major long-term issue 9 requiring the other parent s consent. 10 However, it is natural following relationship breakdown that parents will disagree over decisions that are in their child s best interests. If agreement cannot be reached and consent is not provided, the court must step in to make or adjust a parenting order instructing the parties. 11 The best interests of a child are the paramount consideration when making such an order. 12 The 2006 amendments to the Act emphasised that the child s best interests in such matters are defined primarily as the fostering of a meaningful relationship with both parents 13 in the absence of 1 Juliet Behrens, Bruce Smyth and Rae Kaspiew, Australian family law court decisions on relocation: Dynamics in parents relationships across time (2009) 23 Australian Journal of Family Law 222, Sarah Middleton, Variation of parenting orders and the best interests of children: Are some categories of change more likely than others to satisfy the rule in Rice and Asplund? (2007) 21 Australian Journal of Family Law 1, 7. 3 Ibid. 4 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (Cth). 6 Middleton, Variation of parenting orders, above n 2, 1. 7 Mazorski v Albright (2007) 37 Fam LR 518, ; McCall v Clark [2009] FLC Patrick Parkinson, The realities of relocation: Messages from judicial decisions (2008) 22 Australian Journal of Family Law 35, Family Law Act 1975 (Cth), s 4(1). 10 Middleton, Variation of parenting orders, above n 2, SCVG & KLD [2011] HCATrans Family Law Act 1975 (Cth), s 60CA. 13 Ibid, s 60CC(2)(a). 1

2 family violence 14 ( the primary considerations ). A meaningful relationship is presumed to be best established through equal shared parental responsibility. 15 Equal shared parental responsibility, depending on the best interests of the child and the reasonable practicability of the order, can manifest as an order for equal time, an order for substantial and significant time, or can be rebutted altogether if there is evidence to suggests equal shared parental responsibility is not in the child s best interests. 16 Therefore, the constant consideration is the continued benefit of the child to have a meaningful relationship with both parents in the first instance. These amendments have obviously been included to emphasise the importance of ongoing contact and relationship development between parents and their children, despite separation. 17 This presupposition is inherently against relocation as this can, by court order, physically and emotionally distance children from their parents, straining the bond between them. 18 Therefore, these amendments have been championed for addressing gender-inequality in children s residency disputes by emphasising the importance of a child s ongoing meaningful relationship with both parents. 19 This has made it more difficult for courts to find in favour of a child accompanying a mother s relocation simply because the child has a closer existing relationship with the mother (common in most young children). 20 A court is now much more reluctant to impose such an order, explaining the 25% reduction in the success rate of relocation applications since the introduction of this new emphatic legislation. 21 Only approximately 50% of relocation applications are now successful in Australia. 22 There are additional considerations 23 a court must consider 24 such as the child s maturity and views, the difficulty, expense and distance of relocation and impact on the child, etc. However, the deliberate elevation of meaningful relationship to the primary consideration naturally diminishes the importance of all other relevant factors. 25 This two-tiered approach is undoubtedly the aim of the legislation, 26 consistent with the Act s underlying principles of protecting a child s best interests Ibid, s 60CC(2)(b). 15 Ibid, s 61DA. 16 Cowley v Mendoza (2010) 43 Fam LR 436, 41 per Murphy J. 17 Richard Chisholm, Making it work: The Family Law Amendment (Shared Parental Responsibility) Act 2006 (2007) 21 Australian Journal of Family Law 143, Middleton, Variation of parenting orders, above n 2, Behrens, Smyth and Kaspiew, Australian family law court decisions on relocation, above n 1, Ibid. 21 Ibid. 22 Ibid. 23 Family Law Act 1975 (Cth), s 60CC(3). 24 Ibid, s 60CC(1). 25 Patricia Easteal and Kate Harkins, Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act (2008) 22 Australian Journal of Family Law 259, Chisholm, Making it work, above n 17, Family Law Act 1975 (Cth), s 60B(1). 2

3 However, as a result these amendments considerably limit the relevancy and weight of other factors involved in a child s long-term wellbeing, happiness and general best interests. 28 Is this the best approach to relocation cases or have the courts and legislation got it all wrong? By failing to look beyond the immediate best interests of a child s right to know both parents in a meaningful way, and ignoring the best interests of the parents or the long-term interests of the child, do we overlook key factors in the optimum outcome of child rearing? -PROBLEMS WITH PRIMARY CONSIDERATION- For the many reasons that parents decide to relocate themselves and their children, their child s best interests are (usually) foremost. 29 When the court subsumes this role in the event of conflict, it seems unnatural that the entire factorial situation is not considered equally and that one factor (meaningful relationships) takes precedence over all others. Indeed, in family law, with the exception of parenting orders, a child s long-term best interests generally outweigh short-term concerns. 30 While the Act provides other considerations for determining a child s best interests, 31 the elevation of the benefit of a meaningful relationship with both parents to a primary concern consequently supersedes all other factors in importance. 32 This has created an uncertain, unpredictable approach to relocation cases in the courtroom, as judges differ in the weight they allot to the primary consideration. 33 Perhaps this is due to a lack of specific legislation and judicial process on relocation matters, 34 and the consequent broad approach under standard separation legislation. 35 Hence, it is a difficult area in which to advise a client of their success, as there appears to be no one factor holding more weight than another 36 with the exception of the primary consideration, and no standard process of applying these laws case-by-case. 37 Furthermore, an inherent problem with this primary consideration approach is that it tends to ignore the long-term interests of the child, instead focusing on the more immediate. 38 The intrinsic complexity of family situations show there to be many circumstances where it may in fact be in the best interests of the child to relocate. Their proposed new location may present greater medical, 28 Anthony Dickey, Family Law (Thomson Reuters, 6 th ed, 2014), Behrens, Smyth and Kaspiew, Australian family law court decisions on relocation, above n 1, Lloyd v Lloyd [1980] FLC , , cited in Dickey, Family Law, above n 28, Family Law Act 1975 (Cth), s 60CC(3). 32 Easteal and Harkins, Are we there yet?, above n 25, Parkinson, The realities of relocation, above n 8, Anita Mackay, Developments and Events (2006) 20 Australian Journal of Family Law 9, Family Law Act 1975 (Cth), Part VII. 36 Aldridge v Keaton [2009] FLC , 83,825 cited in Dickey, Family Law, above n 28, Ibid. 38 Easteal and Harkins, Are we there yet?, above n 25,

4 educational or social benefits to the child that they would not receive in their current location. The relocation may be an essential requirement of one of their parents which could lead to greater income and therefore financial support of the child. And yet, if the relocation subsequently restricted the access the child may have to their other parent, an application for relocation may be refused despite all the other benefits to the child, to make way for the primary consideration. Lastly, a severe issue raised in response to this narrowed view on relocation is the consequences it has for the constitutional right of freedom of mobility. 39 Relocation applications, refused due to a suspected influence they would have on the meaningful relationship between the other parent and child, are essentially court ordered geographical captivity on a parent, limiting their natural freedoms, 40 sometimes imposing significant expense, inconvenience and hardship. 41 While relocation is dealt with under general separation laws, where no blame is (yet) placed upon either party for the origin of the separation, 42 it is somewhat ironic that when it comes to relocation itself, some parenting orders enforce nothing less than captivity and punishment. Some cases, however, have been successful in arguing this alternate perspective on the best interests of the child. Many factors have been considered relevant in spite of the primary consideration. 43 These include a parental capacity, 44 drug addiction, 45 mental illness, 46 and indigenous heritage. 47 Even the potential unhappiness of the resident parent if restrained from moving has been raised successfully due to the possible consequences of a child being raised by a depressed parent, possibly unable to find work or social support circles due to inability to relocate. 48 This in turn may alter a parent s (usually mother s) capability to look after their child, fulfil their parental obligations and attend to the child s needs, influencing their ability to provide good parenting. 49 This somewhat negates the consideration of s60cc(3)(l) instructing that a parental order be made in such a way that reduces the need for the institution of further proceedings in relation to that child. 50 It is clear that many of these factors play a bigger role in the interest of a child than the Act currently allows. 51 However, this area of law will evidently remain contentious and confusing until some form 39 Australian Constitution 1901 (Cth), s 92, cited in Mackay, Developments and Events above n 34, AMS v AIF (1999) 199 CLR 160, 208 per Kirby J, cited in Parkinson, The realities of relocation, above n 8, Behrens, Smyth and Kaspiew, Australian family law court decisions on relocation, above n 1, Ibid, Parkinson, The realities of relocation, above n 8, Barker and Barker [2008] FMCAfam W and P [2007] FMCAfam Mills and Watson [2008] FMCAfam Davis and Spring [2007] FamCA Taylor v Barker (2007) 214 FLR Behrens, Smyth and Kaspiew, Australian family law court decisions on relocation, above n 1, Family Law Act 1975 (Cth), s 60CC(3)(l). 51 MRR v GR (2010) 240 CLR 461; McCall v Clark [2009] FLC

5 of specific relocation legislation is enacted to provide a clearer process, considering all contributing factors to a child s best interests (both immediate and long-term). 52 -CONCLUSION- The 2006 amendments have successfully reduced the number of relocations granted, thereby supporting the intention to maintain meaningful relationships and contact between parents and their children, which supports the objects of the Act 53 and has been applauded by gender-equality groups. However, this inherently narrows the scope of considerations and limits the assessment of the many relevant factors in a child s development and interests to just one: the child s right to an equal meaningful relationship with both parents. While only a primary and not the sole consideration of a child s best interests, 54 lack of specific relocation legislation and judicial process has resulted in a non-uniformed approach to relocation cases, and issues of human rights have arisen due to courtordered restrictions on parents who have little choice between captivity and losing contact with their child, creating uncertainty and misery for many Australian families. 52 Easteal and Harkins, Are we there yet?, above n 25, Chisholm, Making it work, above n 17, A v A; Relocation Approach (2000) 26 Fam LR 381, 12, cited in Middleton, Variation of parenting orders, above n 2, 7. 5

6 REFERENCES Primary Legislation Australian Constitution 1901 (Cth). Family Law Act 1975 (Cth). Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Cases A v A; Relocation Approach (2000) 26 Fam LR 381. Aldridge v Keaton [2009] FLC AMS v AIF (1999) 199 CLR 160. Barker and Barker [2008] FMCAfam 2. Cowley v Mendoza (2010) 43 Fam LR 436. Davis and Spring [2007] FamCA Lloyd v Lloyd [1980] FLC Mazorski v Albright (2007) 37 Fam LR 518. McCall v Clark [2009] FLC Mills and Watson [2008] FMCAfam 2. MGG v GR (2010) 240 CLR 461. SCVG & KLD [2011] HCATrans 285. Taylor v Barker [2007] 214 FLR 433. W and P [2007] FMCAfam 105. Secondary Anita Mackay, Developments and Events (2006) 20 Australian Journal of Family Law 9. Anthony Dickey, Family Law, (Thomson Reuters, 6 th ed, 2014). Juliet Behrens, Bruce Smyth and Rae Kaspiew, Australian family law court decisions on relocation: Dynamics in parents relationships across time (2009) 23 Australian Journal of Family Law 222. Patricia Easteal and Kate Harkins, Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act (2008) 22 Australian Journal of Family Law 259. Patrick Parkinson, The realities of relocation: Messages from judicial decisions (2008) 22 Australian Journal of Family Law 35. 6

7 Richard Chisholm, Making it work: The Family Law Amendment (Shared Parental Responsibility) Act 2006 (2007) 21 Australian Journal of Family Law 143. Sarah Middleton, Variation of parenting orders and the best interests of children: Are some categories of change more likely than others to satisfy the rule in Rice and Asplund? (2007) 21(1) Australian Journal of Family Law 1. 7