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Castan Centre for Human Rights Law




Prepared by Ms Adiva Sifris, Dr Sarah Middleton,

Mr Ross Hyams and Ms Vicky Kirmos


Court orders regarding the relocation of children after parental separation generate a great

deal of emotion, particularly for the parent whose contact with his or her child is altered or whose freedom of movement is curtailed. Australian families are part of a highly mobile society, often with emotional and cultural connections either interstate or overseas.

Once residence and contact orders are made or agreed to, extraneous factors may influence where parents and/or children live, resulting in litigation. More often than not, women are the primary care givers and residence parents. 1 Preventing their movement may hinder their social, psychological and economic advancement and perpetuate a cycle of poverty. As the child’s best interests are intrinsically linked with the residence parent’s well being and are promoted in an environment free from conflict and disharmony, the residence parent’s ability to parent effectively is a legitimate concern. 2 However, in a world reflecting a trend in gender-neutral parenting and shared parenting, men are becoming more actively involved in, and taking greater responsibility for, the upbringing See Australian Bureau of Statistics, Household and Families, 1301.0 Year Book, Australia, 2002.

http://www.census.gov.au/Ausstats/abs@.nsf/94713ad445ff1425ca25682000192af2/7fe024c77150f392 ca256b350010b3f3!OpenDocument (accessed 23 March 2006). Patrick. Parkinson & Bruce Smyth, ‘When the difference is night and day: Some empirical insight into patterns of parent-child contact after separation’ Paper presented at the 8th Australian Institute of Family Studies Conference, Melbourne,

2003. http:www.aifs.gov.au/institute/afrc8/papers.html#p (accessed 23 March 2006). Bruce Smyth and Irene Wolcott, ‘Why study parent-child contact?’ in Bruce Smyth (ed), Parent-Child Contact and PostSeparation Parenting Arrangements (2004) Australian Institute of Family Studies, Report No 9.

B v B: The Family Law Reform Act (1997) 21 FamLR 676, 10.42-10.43.

of their children. This is reflected in the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (‘the Bill’) with its emphasis on equal shared parental responsibility. However, it is the reality of women in a majority of cases having residence of children, and fathers wishing to be more actively involved, which needs to be carefully balanced.

Relocation cases are assessed against this background, with each case judged on its own merits and, as with all orders involving children, with the best interests of the individual child being the paramount consideration. If the Bill achieves its aims, resulting in a significant increase in shared parenting, relocation will take on a different aspect. That is, it may become more difficult to characterise relocation disputes as always involving the ‘residence’ parent seeking to relocate and the ‘contact’ parent opposing the relocation.

Instead, the dispute may involve two residence parents. The possibility that the parent seeking to relocate could relocate without the children, but maintain reasonable contact with the children who remain residing with the other parent, becomes a more realistic option. In these cases, the right of the child to maintain meaningful involvement with both parents will weigh more heavily in the balance in assessing where the best interests of the child lie.

Given that it is uncertain whether or not the reforms introduced by the Bill will effect post-separation patterns of parenting, this submission supports the adoption of a waitand-see approach. The question of whether relocation laws will need to be reformed as a consequence of the legislative changes made by the Bill can only be assessed when the social impact of the Bill is known. Changing the law of relocation at this stage is premature.

However, it is suggested that the Bill’s proposed amendments to the Family Law Act 1975 with the emphasis on equal shared parental responsibility, equating in practice to time allocation of children between parents, will place an unreasonable onus on a parent.

In order to relocate it will be necessary to show ‘compelling reasons’3 for doing so. In Holmes and Holmes (1988) 12 FamLR 103.

short, the proposed amendments will mean that relocation will be less of an option – a situation that may not be in the child’s best interests.

This submission addresses the following consultation questions:

Paragraph 2.1, Page 4 If the Family law Act was to refer to ‘relocation’, it is likely to be necessary to define this term. The question then arises as to how would relocation be defined for this purpose?

It is not necessary to define relocation.

Specific reference to ‘relocation’ in the Family Law Act would serve no clear purpose.

The difficulty that judges face with relocation cases is not in deliberating whether the proposed move is intra state, interstate or overseas. Relocation case law suggests this is easily discerned. The difficulty is in the exercise of their discretion in deciding how best to promote the child’s interests as pragmatically and realistically as possible, knowing full well that such cases generate enormous emotional responses and their outcomes leave one parent feeling greatly disappointed.

Pre and post Family Law Reform Act 1995 relocation cases reveal that the court is not concerned with defining relocation. Instead its focus is directed at the practical implications of its decision to permit or prohibit a parent from moving and the significant implications of how a ‘lack of contact’ or ‘reduced contact’ with the other parent will affect the best interests of the child. It is also recognized that while the best interests of the child are the primary consideration the court also takes into account the interests of the parents in the child’s life. 4 Under the current legislation, relocation orders are ‘parenting orders’ within the meaning of section 64B. They are determined in accordance with the child’s best interests, in light of the objects and principles of section 60B, and the factors set out in section 68F(2). It is AMS v AIF and AIF v AMS [1999] HCA 26, 144 (Kirby J); U v U [2002] HCA 36, 159 (Kirby J) and 170 (Hayne J).

not necessary to define relocation because the proposed section 60CC and the amended objects provision in section 60B, do not prevent relocation cases from being determined in the same manner. In this sense, they do not constitute a distinct category of orders nor would they benefit from being classified as such. As the Court in B v B: The Family Law

Reform Act (1997) (‘B v B’) stated:

[R]elocation cases are not a special category. They are governed by the provisions of Part VII in the same way as any other case relating to parenting orders for children… 5 Thirty years of case law has yet to raise concerns about relocation cases which either a definition or a ‘special category’ in the Family Law Act would alleviate.

Paragraph 3.9, Page 8 Please consider formulating a definition of the “best interests of the child”.

It is not necessary to formulate a definition of the “best interests of the child”.

The concept of the child’s best interests is open to criticism, as being vague and too broad and resulting in the unpredictability in judicial decision making and the furtherance of litigation. As convenient a tool as it may appear at first glance, a definition of the child’s best interests cannot accommodate the diverse nature of the interests appropriate for a particular child, from a particular background and at a particular time of development.

For a proper assessment of what best promotes the interests of a particular child the common denominator of what constitutes a child’s best interests cannot be restrictive.

Therefore, section 65E which provides that the child’s best interests are paramount must continue to be understood in terms of the achievements of certain goals which are deemed socially and morally beneficial for the child. These goals ensconced in section 60B are amplified by the considerations in section 68F(2). They act as standards by which the court evaluates the child’s best interests because they offer individual meaning, to individual children, in individual circumstances. In determining the child’s best interests under the new section 60CC, the court is obliged to consider how the ‘Primary B v B: The Family Law Reform Act (1997) 21 FamLR 676, 9.60.

considerations’ of ‘the benefit to the child of having a meaningful relationship’ with both parents and of the need to protect the child from harm are to be achieved, and then, further consider the criteria listed under ‘Additional considerations’.

In attempting to give effect to the principle of the child’s best interests, the court is concerned to provide individual justice and to gain for the child the best opportunity for quality of life. Inevitably, this requires the application of flexible and wide judicial discretion. But that is not to say that discretionary powers are absolute. They are subject to guidelines or criteria derived from case law or legislation, as well as the scrutiny of a superior court. 6 If the process creates outcomes which are unpredictable but ultimately establish what is in the best interests of an individual child, such outcomes are to be preferred to those on a legal conveyer belt.

Paragraph 3.36-37, Page 15 Please consider whether the Family Law Act should be amended to provide specific criteria for making relocation decisions. In considering this broad question, please

also consider commenting on the following consequential questions:

• Whether relocation cases should become a special category of cases that require separate treatment (contrary to the approach that has been adopted by the High Court and the Full Court of the Family Court), and if so, why?

• Which of the criteria should be mandatory and which should be relevant considerations? Are there any factors that should not be taken into account?

• If some guidelines were to be inserted in the Family law Act, should they be based on the principles from case law outlined above?

Relocation cases should not become a special category of cases that require separate treatment nor is there a need for guidelines to be inserted in the Family Law Act.

As mentioned above, relocation cases, from the freedom of movement cases 7 prior to the Family Law Reform Act 1995 (Cth), to those in recent years, do not raise matters that cannot be accommodated by the existing legislative framework or the proposed Norbis v Norbis (1986) 161 CLR 513, 536 (Brennan J), 519 (Mason and Deane JJ).

Craven v Craven (1976) 1 FamLR 11 was indicative of the trend followed in Holmes and Holmes (1988) 12 FamLR 103; Fragomeli and Fragomeli (1993) 16 FamLR 698 and I and I (1995) 19 FamLR 147.

amendments. Nor are the matters they raise fundamentally distinct from those of residence, contact and specific issues so that they warrant being in a special category.

Thus, the High Court and the Family Court have rightly focused on ensuring that relocation decisions, as all decisions made under Part VII, are based on the paramountcy principle, the merits of the individual facts of the case and the exercise of wide judicial discretion. To this end, the Family Court in A v A: Relocation Approach (‘A v A’) 8, incorporated the High Court’s binding principles into a system of workable guidelines.

However, such guidelines should not be inserted into the Family Law Act but should remain as part of the court’s function to apply the law. Therefore, it is highly relevant that the High Court in AMS v AIF; AIF v AMS 9 (‘AMS v AIF’) removed the application of the Holmes test and in U v U, held in reference to the guidelines in A v A, that the court is neither obliged nor able, in every case, to follow the court’s procedure in the manner established by its guidelines. 11 Individual justice and the paramountcy principle demand otherwise.

Paragraph 4.4 Page 16 Do you have any comment on the Committee’s recommendation?

The Committee recommends an additional provision to be included in the Family law Act 1975 (the Act) that should a parent wish to change the residence of a child in such a way as to substantially affect the child’s ability

to either:

• Reside regularly with the other parent and extended family, or

• Spend time regularly with the other parent and other relatives, The court must be satisfied on reasonable grounds that such relocation is in the best interests of the child.

This provision should not be included in the Family Law Act.

In view of the comments in the previous sections it is suggested that this provision is not included in the Family Law Act. Not withstanding the principle from the High Court’s A v A: Relocation Approach (2002) 26 FamLR 510.

AMS v AIF and AIF v AMS [1999] HCA 26.

Holmes and Holmes (1988) 12 FamLR 103, 114.

U v U [2002) HCA 36, 80.

decision in AMS v AIF that a parent wishing to relocate does not need to show ‘compelling reasons’, 12 the proposed provision is strongly reminiscent of the arguments put forward by counsel for the father in B v B. In effect, these arguments are at the heart of the new Bill.

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