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Counsel for the father in B v B proposed that the legislation intended that the rights of children predominate unless there was evidence to suggest that the current situation was contrary to their best interests. It was acknowledged that as inconvenient as that might be, it applied to both parents, so that the court could prevent the contact parent as much as the residence parent from relocating. Further, the parent wishing to relocate had an evidentiary onus to persuade the court that the children’s rights should be changed and as such to demonstrate that the continuance of the children’s existing rights would be contrary to their best interests. Counsel submitted that in relocation cases a parent was a “hostage to fortune” as the rights of children were superior to and extinguished any right which a parent as a private individual could claim. In short, the mother who sought to relocate, showed in counsel’s opinion, an inability to put her children’s needs ahead of her own and to continue to carry out her duties and responsibilities which section 60B required of her. 13 The Bill’s emphasis on joint parental responsibility shifts the notion of shared parenting (a notion already endorsed by the existing provisions in Part VII and subject to the paramountcy principle) from the general position, that children should have regular contact with both parents, to the more specific position, of how much time each parent has with the child. In doing so, it extends this object in the existing section 60B provision and elevates it to a ‘primary consideration’.

As mentioned previously, the new section 60CC will anchor an assessment of a child’s best interest under the ‘additional considerations’ on to the ‘primary consideration’ of the child having ‘a meaningful relationship’ with both parents, with ‘meaningful’ being AMS v AIF and AIF v AMS [1999] HCA 26, 47 (Gleeson CJ, McHugh and Gummow JJ), 191 (Kirby J), 209 (Hayne J).

B v B: The Family Law Reform Act (1997) 21 FamLR 676, 6.1-6.7.

squarely understood in terms of a child spending ‘substantial and significant time’ with a parent. In this sense, the child’s right to spend ‘substantial and significant time’ with a parent will be given considerable weight.

However, as Kirby J stated in AMS v AIF and the Family Court has held consistently, the child’s best interests are the paramount but not the sole consideration. In giving proper effect to the child’s best interests the court must consider the legitimate interests of the parent, in as far as these interests impact on the child and enhance the child’s well being.

Often the child’s best interests coincide with the residence parent’s interests and the proposed relocation benefits both. Therefore, an obligation for ‘compelling reasons’ to justify the proposed relocation only reinforces the notion that there is a rule that separated parents must continue to live close to each other for the benefit of their children. As Kirby J stated, ‘there is no such universal rule.’ 14 Further, it reinforces the notion that there is a rule that the child’s right to maintain personal relations and direct contact with each of the parents on a regular basis, is absolute. Again, as his Honour stated, ‘the rule is not absolute.’ 15 Accordingly, the provision raises a number of concerns, some of which have been mentioned already. First, the provision places an unreasonable onus or evidentiary burden on the parent wishing to relocate. In effect, ‘reasonable grounds’ equates to ‘compelling reasons’. Some reasons may be considered more ‘reasonable’ than others and given particular weight. In practice, this may elevate the ‘reasonable grounds’ to the same position as the child’s best interests despite section 60CA making it clear that the child’s best interests are the paramount consideration. Therefore, the parent wishing to relocate will need to show why the child’s ability to reside regularly or to spend time regularly, with the other parent and extended family needs to be disturbed, and why it is necessary to do this for the child’s best interests. Further, where there is equal shared parenting in place or a substantial time allocation with both parents, then the provision implies that, the parent wishing to relocate will need to show why the status quo should be disturbed.

AMS v AIF and AIF v AMS [1999] HCA 26, 144.

AMS v AIF and AIF v AMS [1999] HCA 26, 146.

Second, the provision implies that ‘regular’, ‘residence’ and ‘time’ must involve face to face contact and be as frequent as possible. This is confirmed by the provision on the ‘substantial and significant time’ which a child spends with a parent in section 65DAA(3).

Third, by including the ‘extended family’ and ‘relatives’ in the equation, the provision increases the hurdles which the parent seeking to relocate must endeavour to jump. This is discussed further at paragraph 5.42.

In short, the proposed provision would undo a well entrenched belief in relocation cases that regular contact does not mean frequent, but must be as appropriate as necessary in order to meet the child’s short term and long term interests and that the quality and continuity of the relationship is to be preferred to the quantity of time a child spends with a contact parent. The proposed provision would in fact succumb to ‘parochial attitudes’ which Kirby J warned were out of place in a modern and highly mobile society 16 and would ‘impose serious deprivations upon the human rights of custodial parents, who are mostly women.’ 17 However, setting aside these issues, the proposed provision offers little in the way of establishing what is in the child’s best interests that cannot be established under section 60CC and in that, if for nothing else, it is redundant.

Paragraph 5.22, Page 25 Do you think that the Family Law Act should be amended to provide that it is necessary for a contact parent to apply to a court to amend the contact orders if the residence parent opposes the contact parent’s relocation?

The Family Law Act should not be amended in this way.

It is highly questionable whether the court should impose on a parent who, for various reasons, may not want to or is unable to have contact with his or her child the

–  –  –

requirement to do so. 18 It cannot be regarded as being in the child’s best interests to force an unwilling parent to exercise contact. It is highly doubtful whether a court would consider a failure to exercise contact as a contravention of a parenting order. The requirement would be almost impossible to enforce and result in litigation flourishing and in court orders which, in practice, would be unworkable. Contact parents who are relocating would simply ignore such an impracticable provision.

Paragraph 5.42, Page 29 Please address how you think the law should take account of the interests of other people affected by relocation decisions.

The rights of grandparents and extended family members 19 are well-established and are sufficiently referred to in the new Bill. 20 An intact family rarely takes into account the interests of other people affected by its decision to relocate as decisions reached by the family are designed, more often than not, to enhance the well being of its members and advance their social and economic interests. It is unreasonable to impose this extra burden on the separated parent who wishes to move for similar reasons. It is also unclear whether the interests of other people affected by the relocation should be on an equal par with the interests of the parent opposed to the relocation. How many people’s interests are to be permitted to have an impact on the child’s best interests? Where do we draw the line?

–  –  –

Paragraph 6.45, Page 42 Are you aware of any Australian social science research that should be taken into account in the development of the law in Australia?

The ramifications of equal shared parenting for relocation have yet to be tested and there is little empirical research on the effects of shared residence on children or whether it is in their best interests. However, statistics from the Australian Institute of Family Studies report 21 indicate that the success of the Government’s reforms will ultimately depend on the attitudes of the parents, the dynamics of family relationships and socio-economic variables. The report highlights the need for parents to be co-operative, flexible in their negotiations and responsive to the need for each to be involved in the life of their children.

The key to successful shared parenting arrangements is dependent on high levels of communication and adequate to high socio-economic resources. However, as relocation cases clearly confirm, parents with such resources seldom need the assistance of the court.

Paragraph 6.50, Page 42 Do you think that the Family Law Act should provide presumptions either for or against relocation of children with a residence parent, creating a legal onus on the other party to displace the presumption?

The Family Law Act should not provide presumptions either for or against the relocation of children with a residence parent.

Decisions affecting children should be subject to the paramountcy principle. As each case is different, it needs to be determined on its own unique facts. Presumptions undermine this and are incompatible with a case by case assessment. In practice, where shared residence is in place, a legal onus will translate into a presumption that the parent wishing to relocate cannot move. For parents bargaining in the shadow of the law this may shift the balance of power during mediation. Also, it may prevent a parent who feels unable to Bruce Smyth (ed), Parent-Child Contact and Post Separation Arrangements (2004) Australian Institute of Family Studies Report, No 9.

displace the onus to continue to live in circumstances which are detrimental to their well being and not in their children’s best interests.

Case law reveals that invariably the residence parent is the mother and repeated reasons for relocating, such as repartnering, family support and financial security although neither ‘compelling’ nor creating an onus, emerge as better reasons and suggest that the social and economic implications of gender continue to be given considerable weight in the court’s decision making process. These cases also acknowledge that parents who feel trapped, controlled and financially dependent and in circumstances limiting their opportunities to form new relationships, to tap into the emotional and physical support of the extended family, to find better employment or to advance their career, will not be able to parent effectively and this in turn will impact badly on their children. The residence parent’s happiness is important because it impacts on the child’s best interests. Thus, a presumption which potentially derails the court’s focus to decide, in the proper exercise of its discretion, whether in the particular circumstances it suits the best interests of the child to permit the parent to relocate the child’s residence, is to be rejected.

The aim of the new Bill is to encourage parents to actively engage in the care and support of their children. It seeks to make parents pro-active in sharing parenting and cooperative in their parental responsibilities. However, any presumption attempting to simplify what is by its very nature complex is incompatible with individual justice and distracts attention from what best promotes the child’s best interests.

Conclusion Familial relationships in intact families are demanding and complex. They are even more so with separated families. In today’s society it is becoming the norm for people to partner, have children, separate, repartner, have children and so the cycle continues.

Blended families are becoming more prevalent and diverse family formations more acceptable. Family Court judges deal with such complexities on a daily basis and there is ample proof of this in relocation case law. It is the nature of families and familial relationships which demand that a one size fit all solution for relocation cases, is inappropriate and if imposed is unlikely to resolve the issues they raise. The proposed amendments may seek to redress what some fathers perceive to be an imbalance in the Family Law system in favour of mothers, but it is imperative, in the area of relocation, that this is not achieved at the expense of their children.

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