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Billy Xiong Reviews: What do the family law cases say about unilateral

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Australia:

What do the family law cases say about unilateral relocation of separated parents?


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The family law courts have acknowledged the tension between a
separated parent having the freedom to live where they want and
parents living so far apart from each other that their children
cannot have a meaningful relationship with each of them.

In Franklyn, the Full Court said:

While the children’s interests are paramount, their
interests are not the sole determinant of parenting orders …
Parents enjoy as much freedom to live where they please as is
compatible with their obligations pertaining to the children …
Only when the children’s welfare would be adversely affected
must a parent’s right to freedom of mobility defer to the
paramount consideration of the children’s best interests.

A court will only interfere with a parent’s freedom of
movement, by making an order that the children be returned to their
old residence after being relocated (that is, essentially a
‘coercive order’ requiring the parent to also return), if
the children’s best interests would be so adversely affected
that the interference is justified. The family law courts have
established that there must be ‘extreme’ factors to make a
coercive order.

In Oswald & Karrington, the Full Court held that
the court must explore and consider alternatives to restricting
freedom of movement. This is particularly where the coercive order
will require a party to relocate contrary to that party’s
proposal and involve a primary caregiver undertaking their role in
a place not of their choosing.

The High Court in MRR v GR emphasised that the reality
of the situation of the parents and children must be considered.
This means, for example, that where one party lives in Brisbane and
the other in Melbourne, the court must practically assess whether
these circumstances permit a child to spend equal time or
substantive and significant time with each parent, even if this
living situation has been caused by a party’s unilateral
relocation.

In Sampson, the Full Court said

where the court may be ordering the return of a parent to a
location in which they have lived for some time, but from which
they have moved without the consent of the other party and in
circumstances in which existing orders or arrangements for the
other parent to spend time with the children will be rendered
ineffective, there will usually be arrangements in the original
location for the practicalities of life, such as accommodation,
schooling and employment if relevant, which can readily be
identified by the Court. If there are not, that fact would normally
be a relevant consideration.

To order someone to relocate to another place will require the
court to be satisfied that the practicalities of life equally or
sufficiently exist in the place to which the party is required to
move.

Unfortunately for those parents left behind, the delayed family
court system does assist the relocating parties’ case, as they
are given the opportunity to establish themselves in their new
location.

In Parks & Farmer, the Full Court said that, while
the Court does not condone unilateral relocations, such actions are
only one of the factors that are relevant to determine a
child’s best interests on an interim basis. While a unilateral
relocation is a relevant factor, it does not necessarily tip the
balance of the child’s best interests in the favour of the
parent left behind.

©
Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in
Brisbane.

This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
Lawyers.

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