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Is Contested International Relocation Dead?
One of the principle proponents of the 2006 'shared care' amendments to the Family Law Act 1975, Professor Patrick Parkinson of the Sydney University Law School, has openly commented that those amendments 'ought to make relocation harder'. It should be harder, because in a case where both parents spend time with a child or children, both have meaningful relationships with them and both exercise their parental responsibilities with diligence, a relocation simply nullifies that.
Professor Parkinson's view is that relocation should be a rarity; indeed only happen when the non-relocating parent has 'dropped out of the children's lives'.
Interestingly, the word 'relocation' does not appear in the Family Law Act 1975. Nor does the legislation require the courts to consider 'relocation' cases in any different way. Yet they are the most difficult types of parenting cases the courts face.
Recently, the Full Court has just delivered judgment in McCall & Clark [2009] FamCAFC 92. In that case, the Mother of a 4 year old boy was permitted by the Federal Magistrates Court to reside with the child in Dubai, UAE. The Full Court overturned the orders and has remitted the matter back to the Federal Magistrates Court for rehearing.
Relevant to the Court's determination was that neither party submitted that there ought to be anything but equal shared parental responsibility and that prior to separation both parties maintained healthy loving relationships with the child.
The Court also noted that the Federal Magistrate was without the benefit of a family report, nor was an independent children's lawyer appointed.
Critically, the Court held that where there is a presumption of, or agreed, equal shared parental responsibility, the Court must consider whether spending equal time with each parent is in the child's best interests and reasonably practical, then must consider whether spending substantial and significant time with each parent is in the child's best interest and reasonably practical.
The Court held the Federal Magistrate failed to properly consider the merits or otherwise of the child living in Australia with both parties so that a meaningful relationship could be developed and maintained with the child.
It seems to us that the presumed intentions of the 'shared care' amendments as expressed by Professor Parkinson are bearing fruit. Given that one of the primary considerations a court must consider in the determination of the question of 'best interests' is the benefit of a meaningful relationship with each party, the court simply cannot properly determine a contested relocation case (particularly an international one) unless the merits of forcing the party who wants to relocate to stay so that a meaningful relationship can be maintained by both parents are considered. Following, once a party establishes, either alone or with the benefit of a family report, that the quality or meaning of the relationship will be damaged or diminished by relocation, as it inevitably must, the chances of successfully applying to relocate become remote indeed.
For further information on this topic, please contact our Family Law team.
Professor Parkinson's view is that relocation should be a rarity; indeed only happen when the non-relocating parent has 'dropped out of the children's lives'.
Interestingly, the word 'relocation' does not appear in the Family Law Act 1975. Nor does the legislation require the courts to consider 'relocation' cases in any different way. Yet they are the most difficult types of parenting cases the courts face.
Recently, the Full Court has just delivered judgment in McCall & Clark [2009] FamCAFC 92. In that case, the Mother of a 4 year old boy was permitted by the Federal Magistrates Court to reside with the child in Dubai, UAE. The Full Court overturned the orders and has remitted the matter back to the Federal Magistrates Court for rehearing.
Relevant to the Court's determination was that neither party submitted that there ought to be anything but equal shared parental responsibility and that prior to separation both parties maintained healthy loving relationships with the child.
The Court also noted that the Federal Magistrate was without the benefit of a family report, nor was an independent children's lawyer appointed.
Critically, the Court held that where there is a presumption of, or agreed, equal shared parental responsibility, the Court must consider whether spending equal time with each parent is in the child's best interests and reasonably practical, then must consider whether spending substantial and significant time with each parent is in the child's best interest and reasonably practical.
The Court held the Federal Magistrate failed to properly consider the merits or otherwise of the child living in Australia with both parties so that a meaningful relationship could be developed and maintained with the child.
It seems to us that the presumed intentions of the 'shared care' amendments as expressed by Professor Parkinson are bearing fruit. Given that one of the primary considerations a court must consider in the determination of the question of 'best interests' is the benefit of a meaningful relationship with each party, the court simply cannot properly determine a contested relocation case (particularly an international one) unless the merits of forcing the party who wants to relocate to stay so that a meaningful relationship can be maintained by both parents are considered. Following, once a party establishes, either alone or with the benefit of a family report, that the quality or meaning of the relationship will be damaged or diminished by relocation, as it inevitably must, the chances of successfully applying to relocate become remote indeed.
For further information on this topic, please contact our Family Law team.