The Family Law Courts have the power to prevent or allow a custodial parent to unilaterally relocate

The Family Law Courts have the power to prevent or allow a custodial parent to unilaterally relocate with the children of a relationship, from the town or district in which they have been living. These orders, either permitting or denying relocation, are known as “ relocation orders ”.

On an interim basis, the court will make an order refusing relocation, and forcing the return of the custodial parent with the children if necessary, until the issue can be fully investigated and determined by the court (or the parents can reach an agreement).

This temporary restriction on the ability of the custodial parent to relocate with the children without the consent of the other parent is enforced for many reasons, with the overriding considerations being to:

• Preserve the children’s stability (status quo); and

• Maintain the ability of the children to have a meaningful relationship with both parents.

This approach was confirmed and explained by Her Honour Federal Magistrate Boland in the decision of Morgan & Miles (2007) FLC 93-343, where Her Honour said:

"The circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

It appears to me that the very difficult issues in cases involving a relocation, … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis."

However interim or temporary relocation orders are still parenting orders, and Section 60CA of the FAMILY LAW ACT 1975 provides:

“In deciding whether to make a particular parenting order about a child, a court must regard the best interests of the child as the paramount consideration”.

What is order the Court likely to make if the child is newborn and does not know the father?

This issue was highlighted by the recent decision of the Family Court of Australia in Iris & Cohen (No 2) [2011] FamCAFC 12120 .

The fac, in that case, were as follows:

• The parties’ relationship commenced in Townsville sometime in October 2009, and they separated on 5 February 2010. Throughout that time the parties lived with the father’s parents.

• In July 2010 the mother moved from Townsville in North Queensland, to near Wagga Wagga in New South Wales.

• The mother said she moved because she felt very stressed being in Townsville because of the behaviour of the father and his family.

• The mother feared that she might miscarry because of the stress caused by the father and his family. She had previously suffered a miscarriage.

• The child was born seven months after the parties’ separation.

• The father had not seen the child.

• The father said that despite making numerous enquiries he was unable to find the mother, although he believed that she was in Wagga Wagga.

• The mother said that she had told the father where she had initially moved.

• The mother was now sharing a house with her sister’s mother-in-law and had nearby family support.

• The mother was dependent on social services.

• The mother had received no money or another form of child support from the father since the birth of the child.

The Family Court decided that at this early stage of the proceedings it was not appropriate to require the mother and child to return to Townsville, particularly given the physical, emotional and financial circumstances that would confront them in doing so.

The Court explained that consideration had to be giving to the fact that this was not a case where the child was having a relationship with the father and was unilaterally being moved away from a settled environment.

There was no evidence to indicate that the mother was not properly caring for the child.

The Court decided that in this case the mother should be allowed to remain with the child in Wagga Wagga for the time being and that an Independent Children’s Lawyer is appointed to represent the child, investigate the circumstances and assist the court in determining whether relocation is in the child’s best interests.

The court decided it would be best to wait for an expert's report before making interim parenting orders for the relocation of the mother and the child to Townsville.

The court may very well order that the mother relocate back to Townsville at a further interim hearing or even at the final hearing. However, this may become less likely as time moves on and the mother settles with her child in the new environment.

This case does, however, demonstrate the importance the court places on matters such as:

• The age of the child and the presence or absence of an established relationship between the child and the father;

• The father’s attitude towards the care of the child and paying child support;

• Neglect of or indifference to the child;

• The presence of domestic violence or other intimidating behaviours which may affect the child, directly or indirectly;

• The family and other support networks the mother and child will receive in the new location; and

• Whether the father had knowledge of or had consented to the relocation.