relocation

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Conlan & Tomlinson [2019] FamCA 93 (27 February 2019)

The child is 8 years old and is subject to final parenting orders that provided for both parents to have equal shared responsibility. The child resides with the mother and spends time with the father. The child has a good relationship with both parents.

However, the father subsequently applied to restrain the mother, and Interlocutory orders were made, the father alleged the mother had threatened to relocate the child to the United Kingdom for a period of time and enrol the child there for school; provisions were made regarding international travel.

It’s important to note at this point, the mother had previously removed the child from school, enrolled and removed her from another school and then commenced home schooling without the fathers consent. The orders also state for a psychologist to support the child’s anxiety and the return of the child back to mainstream school.

The mother- pending final orders, notified the father of her proposal to relocate with the child to the ACT, the father considered it but did not consent. The mother then relocated with the child, notifying the father of the location and the mainstream school the child was enrolled in.

The father has now filed an application in a case seeking the return of the child to live within a 40 km radius of him with the mother, or for a recovery order for the child to live with him if the mother does not return. He sought orders related to schooling arrangements for the child and for costs. The relocation by the mother is in conflict with the orders made in relation to equal shared parental responsibility.

The mother now seeks orders allowing the child to remain in the ACT and to ultimately relocate to the UK with the child.

FACTS SUMMARY:

  • Interim Parenting Orders.
  • The mother made a unilateral change in the face of final parenting orders.
  • The mother and child relocated to the ACT without the fathers consent.
  • The mother further proposes relocation to the UK with the child.
  • The father has applied for orders seeking the child be returned to the area with the mother, if the mother does not return, for the child to reside with him.
  • The mother seeks to remain with the child in the act with intentions to ultimately relocate to the UK.

ISSUE:

Is it in the child’s best interest to remain in the ACT with the mother?

HELD:

It was ordered for the child to be promptly returned to the town to the fathers care, the exception is if the mother returns as well, then the child will live with her and have access to the father. The mother may also select the school for the child, however she is prohibited to change the school without the consent from the Father.

If the Mother does not return with the child, she will remain with the father and time spent with the mother will have to be considered. Furthermore, it was established the mother’s conduct was in contravention of the final orders, however, punishment for breach was not a concern in these proceedings.

The court considered the child to remain in the ACT with the mother, nonetheless there was significant concern regarding the accumulative instability in the child’s life over a period of time from the choices and conduct by the Mother

It was stated at [35] the child had changed schools once and then been removed from school completely to be home-schooled. She has then changed home, changed city, and enrolled in a new school and now there is a proposal that she may relocate to a new country.

It was therefore determined in the best interest of the child that there is a significant need for her to be provided stability, at the very least during the circumstances of the current proceedings, even if it means abrupt interruption for the child and possible amendment of primary carer.

 

Legislation and Principle Cases

Family Law Act 1975 (Cth) s 65DAA  s 60CC  

Goode v Goode  [2006] FamCA 1346

Morgan v Miles [2007] FamCA 1230;  (2007) FLC 93-343

Rice & Asplund [1978] FamCA 84;  (1979) FLC 90-725

U & U [2002] HCA 36;  (2002) 211 CLR 238

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Michaelson & Michaelson [2017] FamCA 174 (23 March 2017)

This case summary is another example demonstrating one parents conduct post separation that included social media; this was an international relocation case where the children (17 & 13 years) expressed firmly their refusal of seeing the father and their desire to relocate with the mother to the UK.

Post separation the fathers conduct greatly upset the children; this included but is not limited to: posting comments about the family breakup on Facebook to be seen by all. The boys saw the posts and some comments on the father’s posts were derogatory of the mother.He also posted on Facebook a copy of the temporary protection order that was made against him, it identified the children, the mother and their address, a number of comments on the post were made and some were derogatory of the mother. Additionally, the father posted a photo of himself holding a sign criticising the mother for withholding the children from him, many of the posts were on a public Facebook page called ‘the Australian Brotherhood of Fathers.

It was determined the father demonstrated a lack of insight into how his behaviour affects the children. The relationship was so impaired between them, it was established the children were “likely to further resent their father” if they were unable to relocate. The order was granted for the boys to relocate with the mother with hopes it would assist in some way in repairing their broken relationship with the father.

ANYTHING you say or post on social media whether intentional, implied, and mistaken, including emails to the OP family can and will be used as evidence in Court.

This is why at FLAST.COM.AU we are managing it quite strictly in terms of member privacy.

As such we ask you to first register on our website FLAST.COM.AU and create an account, and then go one step further and create an anonymous profile.Using that Anon profile you can post a question in the section of the website AND in the QNA section.

FACTS SUMMARY:

  • The Mother and Father were married in 1995 and separated in 2015. They are now divorced.
  • The mother is a dual Australian and UK citizen. The father is an Australian citizen. They met in the UK and moved to Australia in 2001, where they have since resided.
  • Child B was born in 2000, and child C was born in 2006.
  • Before separation, the children had a good relationship with the father and he was involved in their care.
  • The father’s conduct after separation has disturbed the children.
  • 1 March 2016, an order was made by consent specifying for a psychologist to evaluate the children and if suitable to support their re-introduction to the father. The psychologist was not able to persuade the children to meet with the father so therapy did not proceed.
  • 26 March 2015, the father has spent no time with the children; they refuse to have anything to do with the father.
  • 24 August 2016, Ms E prepared a family report. The children refused to meet with the father, so the children were not observed with him. Ms E supports the mother and children relocating. 
  • The father contends the mother is causing the children to turn against him by providing them with misinformation.
  • The mother asserts the children have been negatively impacted by the father’s behaviour since separation and have developed their own view that they do not want to see the father.
  • The mother seeks to relocate to the UK where she has family and support; the children express their desire to relocate there as well.

ISSUE:

  • Is there any possibility of the children partaking in therapy to re-establish their relationship with the father?
  • Should a further interim order be made while therapy is attempted involving supervised time between the father and children and an update family report prepared in six months?
  • Should the mother relocate with the children to the UK?

HELD:

Orders were made for the Mother to have sole parental responsibility and the application for international relocation was granted, the children are able to spend time and communicate with the father upon their request.

In determining this matter the Judge looked to the legislative pathways of Part VII of the Family Law Act 1975, s 60B(1) Section 60B(2),Section 60CA ,Section 60CC,Section 60CGs 4 , s 4AB,Section 61DA,Section 65DAC.

It was established there was no point in making another interim order, the boys refuse to see the father, and pushing the matter will cause the children anxiety and will be counterproductive, the children’s views were given substantial weight due to their maturity.

The judge noted the father contends the children have been alienated by the mother however, the father ignores the boys’ own occurrences with him that may have led the children to form their views of him.

The Judge accepted Mrs E’s evidence that the mother “appeared to be supporting her son’s views rather than imposing her views upon them” the children are “likely to further resent their father” if they are prevented from relocating. Ms E recommended that the mother be able to relocate with the children to the UK, the family have significant support and relation to the UK.

The Judge suggests for the father to obtain therapy in order to gain some understanding into the children’s view of his behaviour and how he might begin to remedy that. 

 

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Mareet & Colbrooke [2019] FamCAFC 15 (7 February 2019)

The Mother and Father are parents to a baby born in 2018; The 5-month relationship that ended in September 2017. The parties resided in NT when they separated; the mother absconded from NT due to DV by the father. She moved back to NSW where her family resides. After awhile there, the mother relocated to QLD. The mother alleged she moved because the father was stalking her. The child had not been born when the mother relocated to QLD.

5 October 2018, it was in ordered the mother to return with the child to NSW and that she “temporarily” resides at her mother’s home. The Judge restricted the mother from leaving the town in NSW until further order.

The primary judge made orders and adjourned the proceedings until 29 November 2018 for a hearing.

The mother appeals these interim orders. The father has conceded the appeal.

Both parties seek costs certificates in relation to the appeal and any rehearing of the application.

FACTS SUMMARY:

  • Appeal from interim orders restraining the Motherfrom relocating.
  • The Father concedes the appeal.
  • The Mother contends there have been significant errors of law made with the orders.
  • The mother states the Judge failed to take into account relevant matters.
  • The mother contends the orders were made from unsupported evidence.
  • The mother asserts that despite a number of requests, the primary judge failed to deliver written reasons for her decision.
  • Cost certificates sought.

ISSUE:

  • Did her Honour erred in the decision to make relocation orders for the mother and child?

HELD:

Appeal granted. Orders of the primary judge set aside, matter remitted for hearing.

Cost certificates granted.

In determining if her Honour erred in the decision to make relocation orders for the mother and child, it was established the child’s residence was never in the ‘region’ in NSW. The mother moved to a town in QLD while pregnant in March 2018.

Whilst it is the courts power to grant this injunction, according to D and SV [2003] FamCA 280;  (2003) FLC 93-137 at [16]the making of such an injunction can be avoided if the court gives adequate consideration to alternate forms of access to children.

In this instance, her Honour failed to consider the father travelling to the town in QLD to see the child and the consideration of the mother’s older child who was enrolled at preschool in QLD.

Furthermore, the order took no account of the financial burden on the mother due to the relocation, which according to her Honour may only be short term.

Moreover, there was also no evidence before her Honour that the mother’s parents had the financial capacity or even the desire to financially assist the mother in relocating back, additionally, the mothers Grandmother stated that she could not accommodate them.

The Judge was unable to determine the reasons given by her Honour, however the Father has conceded the appeal so it was unnecessary to ‘unravel.’

The Judge was satisfied that her Honour’s orders present error that the appeal succeeded on an error of law.

 

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FLAST CASE SUMMARY: Timms & Payton 2015: Interim Relocation Orders

Timms & Payton [2015] FCCA 3324 (18 December 2015).

Facts:

  • Application for Mother and Child to relocate two hours south from Father.
  • There were current orders of joint parental responsibility, with the child residing with the Mother and spending time with the Father on weekends and holidays, this arrangement was working well.
  • Mother expressed to the Court that she was leaving town with or without the child.
  • Court acknowledges Mothers “worrying attitude” putting her needs before the child, and the reasons she gave to relocate were ‘hollow'
  • Child is 11 years of age, has strongly expressed the desire not to relocate, and wants to reside with the father and not change school.
  • The Father opposes the relocation and proposed the child reside with him should the mother relocate.
  • The Father needs outside help to rely on including a neighbour to look after the child due to the nature of his shift work, if the child were to remain with him.
  • The ICL opposed the child relocating.

Issue:

Should the mother be permitted to relocate with the child on an interim basis, and whether the alternative of the child remaining in the fathers’s care is in the best interest in the child.

Judgement:

The child is to relocate with the Mother.

The Court will always consider the best interest of the child as a paramount consideration as  opposed to the child’s wish. In this case both the Father and the child had strongly expressed their desire to remain with each other, however, the Mother has been the primary care giver and given the Father did not present a satisfactory care plan for the child due to the hours/nature of his employment, he could not guarantee routine and would have to rely on outside assistance for the mornings and afternoons. Had the Father presented an alternative satisfactory care arrangement his case would have been much stronger.

 

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Gilmot & Gilmot [2019] FamCAFC 10 (24 January 2019)

FACTS

  • On November 2018, the primary judge made various orders providing for the child of both parties to reside with the Mother in a specified suburb of NSW.
  • It was ordered the Mother could not relocate out of the specific suburb with the child without the fathers written consent or court order.
  • There was no such restriction that was sought by either of the parties.
  • Both parties seek that the geographical reference should be removed from order 3 and for the one in order 4 should be changed to “Sydney Metropolitan area”
  • Both parties also seek for correction of the time that specifies - Saturday 11.00 am until Sunday 1.00 pm, there is a mention to that being for a period of six hours.

ISSUE

  • Is there a lack of procedural fairness?
  • Is there an internal inconsistency in another order?

HELD

 Appeal allowed – Orders varied.

It was established there was a clear error of the words ‘for a period of six hours’ and the times that were provided.

Furthermore, it was determined there was a lack of procedural fairness for the orders on the restriction of relocating out of the suburb, this was not an issue raised by both parties, nor was it mentioned by the judge before making the orders.

Additionally it was determined that her honours reasons will be harmonised by removing the specific suburb of order 3 and varying the order 4 to state “Sydney Metropolitan area” for there was no reference to the specific suburb in them.

 

 

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FLAST CASE STUDY BRIEF -   

CASE : Janos & Alton
CITATION: [2018] FamCAFC 209 (2 November 2018)

DETAILS : Where the respondent concedes error by the primary judge and where there was appealable error.  The Appeal was allowed and made (Note good example of consent orders within Judgement).

& COSTS CERTIFICATES – Whether costs certificates should be ordered.  The appeal succeeded upon questions of law and Costs certificates were ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.

Key Issues (AT) :

COSTS 
(7) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

(8) The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal.

(9) The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred in relation to the rehearing.

(7) (7) Subject to these Orders (or agreement in writing between the parties) the Mother be restrained for a period of 2 years from the date of these Orders, being until 31 December 2019, from relocating outside a radius of 50 kilometres from CANBERRA.


VALID GROUNDS OF APPEAL

INVALID DELEGATION OF POWER
(1) The next challenge made by the appellant to order 19 is that the order delegated to a third party the right to determine whether or not the appellant should be permitted to relocate with the child. The appellant’s primary parenting application was for a final order that would permit the child to relocate from Canberra to the City B area of New South Wales. The primary judge did not make that determination. That decision was placed in the hands of “an accredited mediator (or other recognised professional)”. There is no definition in the orders nor an explanation in the reasons as to what this expression means. The primary judge had no knowledge of what such a person’s expertise, training or merit might be. The primary judge ceased to bear the major responsibility for the exercise of judicial power. The decision of the mediator was not to be the subject of any review. The primary judge has invalidly delegated the central decision in the parenting case to the discretion of a person not vested with the Commonwealth’s power to make orders in relation to children and this was an error of law (see Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84).

DISCRIMINATORY and UNFAIR
(11) Another challenge to order 19 is that order 19(d) is discriminatory and unfair to the appellant in that it permits the respondent to frustrate the precondition the mother is required to satisfy in order to be able to relocate the child. The father’s behaviour could cause an “interruption” and order 19(d) would require the 12 month period of monthly mediation sessions to recommence. The order that the primary judge made by way of a final order put in the hands of the respondent the ability to frustrate the appellant’s legitimate and legal desire and to prevent what ultimately was determined by the primary judge to be in the child’s best interest.

NOT PROVIDING REASONS FOR ORDER
(16) The appellant further challenges order 7 which restrains the mother from relocating outside a radius of 50 kilometres from Canberra for a period of two years. Whilst there is power to make such an order, the Full Court has observed that a proper exercise of that power is likely to be rare and at the extreme end of the discretionary range. Any such order needs to be supported by “strong and well-defined” reasons (see Sampson v Harnett (No. 10) (2007) FLC 93-350 at [58] and [83]; Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622). The primary judge erred in law in not providing any reasons as to why this order restraining the mother’s movement should be made.

FAILURE TO CONSIDER 
(17) Grounds 3, 4, 5, 6 and 7 of the appellant’s Notice of Appeal filed 15 January 2018 complain that the primary judge failed to consider and make orders in relation to the appellant’s applications that she be able to communicate with the child when he was in the care of the respondent; that she be able to spend time with the child on his birthday if otherwise in the care of the respondent; that the child spend time with the appellant on her own birthday when he would otherwise be in the respondent’s care and that the child spend time with the appellant at Christmas and Easter. The appellant also sought orders in relation to the child’s passport and in relation to the appellant travelling overseas with the child. The respondent concedes that the primary judge failed to consider and make orders in relation to these parenting applications made by the mother and concedes the primary judge failed to give any reasons as to why those orders should not be made. It was an error of law for the primary judge not to deal with these applications in his reasons and to not make orders one way or the other.

FAILED TO GIVE REASONS
(18) In respect of the property settlement order that the primary judge made at 1 to 5 of the orders, grounds 27 and 28 of the appellant’s Notice of Appeal challenge the primary judge’s conclusions about a number of balance sheet items and grounds 29 and 30 assert that the primary judge failed to give any or any adequate reasons as to how he assessed contributions and s 79(4)(d) – (g) considerations. The respondent at [20] and [21] of the respondent’s summary of argument concedes that the primary judge made the errors asserted by the appellant. I accept that the concessions were properly made and the errors asserted were errors of law.


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Sperm donation is testing what it means to be a legal parent, all the way to the High Court

Click here for the High Court Of Australia Transcript Proceedings: Masson v Parsons & Ors [2018] HCATrans 265 (14 December 2018)

January 30, 2019 6.11am AED

The family courts have historically treated legal parentage as a question of who has “begotten or borne” a child. But increasingly complex family situations created as a result of donor conception, surrogacy, IVF and DNA testing are sorely testing this biblical-sounding definition.

In 2019, the Australian High Court will be hearing the appeal concerning the legal parentage of a child born via sperm donation. This is a crucial opportunity for the court to reconsider the “begotten or borne” definition, and the emphasis currently placed on biology and how someone was conceived.

Some time this year, the High Court will be telling an 11-year-old girl (let’s call her Billie) who her legal parents are. By the age of 11, most of us have a pretty clear picture of who our parents are, and chances are, Billie does too. She and her younger sister live most of the time with their two mums (Susan and Margaret Parsons), and have regular time with their dad (Robert Masson) and his partner Greg.*

Why is this case significant?

Billie’s family is in the High Court because her mums want to re-locate to New Zealand, and her dad objects. Whether the Parsons family should be allowed to relocate is a parenting order decision, in which the best interests of Billie and her little sister must, under the Family Law Act, be paramount.

But because Australian family law puts a big emphasis on “the benefit to the child of a meaningful relationship with both parents” when deciding the best interests of the child, whether Robert is considered Billie’s legal parent will influence the outcome.

Billie’s case is significant because at its heart is a curly question: what does it mean to be a legal parent? Pull at this thread, and it unravels many other questions. What counts when judges are deciding a child’s legal parentage? Should the court consider the circumstances of the child’s conception, birth and genetic relatedness? Are the intentions of the people who helped bring the child into the world relevant? What about whether they have functioned as the child’s parents so far? And is the child’s perspective relevant?

Family law has struggled to keep up with developments in assisted reproduction, paternity testing and the increasing diversity of Australian families. Parentage issues arise not just as a result of assisted conception, such as in cases donor conception or surrogacy. Issues also arise when children are raised by a non-genetic parent for cultural reasons (such as in some Aboriginal or Torres Strait Islander families), or where a man has been raising a child who he later discovers is not his biological offspring.

Why is Australian parentage law so messy?

Australian parentage law is particularly complex because of uncertainty surrounding the way the federal Family Law Act interacts with state or territory laws.

There is, as one senior judge points out, “serious divergence of judicial opinion in this area” and the Family Law Act does not provide any clear answers.

The overall lack of flexibility for diverse families has led the Family Law Council to conclude the present framework does not “reflect the reality of parenting and family life for many children in Australia” and that comprehensive federal legislation that defines legal parentage across all circumstances is needed.

How can we clarify the law?

With such statutory complexity, the High Court may be limited in what it can do to clarify the law in Billie’s case. For decades, the Family Court has debated whether the provisions in the Family Law Act regulating legal parentage for children conceived via assisted reproduction exclusively define legal parentage for these children, or merely enlarge the category of people who can be determined a parent. Neither of these approaches, however, adequately respond to the bigger issue of how “parent” is defined.

When interpreting the term “parent” within the Family Law Act, judges have assumed the use of the term “both parents” means a child may have a maximum of two parents, each of whom has “begotten or borne” the child (unless an adoption order is in place, or a statutory exception applies).

 

This biological interpretation is at odds with understandings of the meaning of “parent” in other areas of law. For example, in migration law, the Full Federal Court held in 2010 that the word “parent” is not limited to biological parents. Rather, it “is used today to signify a social relationship to another person” often characterised by “intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”.

In a number of other jurisdictions, including Canada’s British Columbia, children can have more than two legal parents, where that reflects the intentions of all the adults before conception.

Should children have a voice?

But something important is missing from this debate. At 11 and ten, Billie and her younger sister could probably tell the court a lot about who they regard and rely on as their parents. Their legal parentage forms a crucial part of their legal kinship identity, and therefore part of their personal identity. It affects their legal relationships not just with their legal parents, but with one another as siblings and with extended family.

Yet amendments to the Family Law Act in 2012 explicitly removed decisions surrounding legal parentage from “parenting orders” (ie, orders that state the parenting arrangements for a child, including matters such as who they live with and when). This means that when making decisions about a child’s parentage, the best interests of the child are not paramount and there is subsequently no requirement that the child’s views be considered.

When the trial judge first heard Billie’s case in the Family Court, she discussed the children’s understanding of their family in the basic sense of who the children called “mummy” and “daddy”.

Ultimately, however, the judge emphasised Robert’s genetic contribution, and his intention to be a father in deciding that he was a legal parent (and that Margaret, who had been present at Billie’s conception, and has been one of her primary care-giving parents from birth, was not).

Achieving a more child-centred model of legal parentage is likely to be a long process, requiring significant changes to legislation. How the High Court responds to this case, and the curly problems of legal parentage it raises, may help shape reform.


* This article uses the same pseudonyms used by the Family Court

Authors

  1. Lecturer in Law, La Trobe University

  2. Professor, Law School, La Trobe University

Theconverastion.com

 

 

 

 

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INTERNATIONAL RELOCATION: A MODERN AUSTRALIAN PERSPECTIVE ON THE TYRANNY OF DISTANCE

 

When marriage breakdown occurs children and their parents must adapt to new circumstances. Sometimes the resident parent thinks that it would be a good idea for them, personally, to start life anew in another city – or even in another country.

When a parent wants to move overseas and take the children to live there with them – what approach should a court take? The difficult question of international relocation is considered by courts in many countries every week.

The purpose of this paper is to give an overview of the current Australian position and to make some comments generally pertaining to the international relocation of children.

Written by FEDERAL MAGISTRATE PAUL HOWARD FEDERAL MAGISTRATES COURT OF AUSTRALIA BRISBANE, AUSTRALIA.

Click here to read at http://classic.austlii.edu.au/au/journals/FedJSchol/2008/25.pdf

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