Relocation – A Case Study

Posted 27th October 2015 by Dirk Klicker

Relocation – A Case Study

Hamish & Brighton [2014] FamCAFC 242

Facts

This was an appeal by the mother against parenting orders.  The father opposed the appeal.

The parenting orders made by the Trial Judge provided for the parties to have equal shared responsibility and for the children to live with the mother and spend time with the father.  There was also an injunction restraining the mother from relocating with the children from Perth to South Australia.

The parties lived in Perth, Western Australia, for the majority of the marriage.  There were 2 children of the marriage, A born in April 2005 and B born in September 2011.  With the demise of the marriage the mother had sought to relocate to South Australia due to a number of factors, including the proximity of family members and cheaper housing.

The Trial Judge considered both parties to be “excellent parents” and both had “wonderful extended families”.  He considered that the issue to decide was whether to either maintain the status quo and restrict the mother’s freedom of movement or allow the relocation, which would “unequivocally effect the singular relationships the father enjoys with the children”.

The Trial Judge concluded that the best interests of the children were best served by them residing in Perth.

Grounds of appeal

The mother argued among other things that the Trial Judge failed to make parenting orders based on an evaluation of each party’s proposal and in accordance with the prescribed legislative pathway applicable to parenting cases involving relocation.

The findings of the Full Court

The Full Court of the Family Court of Australia allowed the appeal and noted that the Trial Judge did not undertake the exercise required by s65DAA(2) and did not consider the reasonable practicality  of each of the proposals of the parties.

The Full Court set aside the Trial Judge’s parenting orders and remitted the matter to the Family Court of Western Australia for rehearing by a different judicial officer.

The Trial Judge did consider and make findings as to the best interests of the children, but he did so under s60CC of the Act and not under s65DAA(2).

Section 65DAA(2) provides that if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents the court must:

  1. consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and is reasonably practicable; and
  2. if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

The Full Court said “Given what the High Court has said in MRR v GR, we doubt that the necessary findings providing the power to make the orders which his Honour made were present”.

The conditions to the application of s 65DAA(2) were satisfied, as it had been agreed that the mother and father were to have equal shared parental responsibility.  Further, there was no order for the children to spend equal time with the parents.  Therefore, the Trial Judge was obliged apply s65DAA(2).

Analysis

It is well-established that the relocating parent does not need to show ‘compelling reasons’ for relocating.  The reason being that focusing on the relocating parent’s reasons for wanting to move distracts from the proper focus of the inquiry, which should be what is in the best interest of the child.

Nevertheless the relocating parent’s reasons for relocating are relevant and will be closely examined by the court when applying the legislative pathway and considering the reasonable practicality of each of the proposals of the parties.

The Full Court held that the matters raised by the mother in relation to the reasonable practicality had not been addressed by the Trial Judge at all as follows:

  1. The mother’s unchallenged evidence of situational anxiety and depression, and consequent effects on her parenting capacity.
  2. The mother’s evidence of much more affordable housing, and lower living costs, in South Australia.
  3. The mother’s unchallenged evidence that it would be extremely difficult if not impossible for her to retrain and resume her health professional profession in Perth, but this was eminently feasible in South Australia.
  4. The mother’s evidence that she would be forced to access day care facilities in Perth, a prospect which concerned her greatly, whereas she could access unlimited, free, best quality child-minding from family members in South Australia.
  5. The Trial Judges finding in relation to “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”, which was a positive finding in respect of the mother’s proposal.
  6. The mother’s evidence that she would not only have more time with her children in South Australia, but would have greater opportunities for “one on one” time with each of her children.
  7. The Trial Judge’s own finding that the mother’s proposal would not involve financial difficulty for the father, nor would there be any problems with communication between the parents over issues involving the children.  As the Full Court remitted the case to rehearing the decision cannot be used as an example of a case in which the relocating parent was successful.  The case highlights that relocation impacts on the meaningful relationship between the child and both of the parents. This has to be balanced with the interest of the parent’s right to freedom of movement.  The court must look closely at the proposals of each of the parties and weigh up the proposals using the prescribed legislative pathway.

As the Full Court remitted the case to rehearing the decision cannot be used as an example of a case in which the relocating parent was successful.

The case highlights that relocation impacts on the meaningful relationship between the child and both of the parents.  This has to be balanced with the interest of the parent’s right to freedom of movement.  The court must look closely at the proposals of each of the parties and weigh up the proposals using the prescribed legislative pathway.