Halston and Neast [2023] FedCFamC2F (25 September 2023) dealt with a successful urgent application by a father for the return of the mother, and two children aged 9 and 5 to Adelaide from 150 kilometres away in country South Australia where the mother had unilaterally relocated.
The mother’s case was she should not be compelled to return to Adelaide because:-
- Her relationship with the father was off and on from 2012 until final separation 2019 (inferring he had not been involved much with the care of the children);
- The mother had always been the primary caregiver;
- The relationship of the mother and father was marked by family violence including an incident in early 2021 where the mother alleged the father punched her in the face (she later withdrew the complaint).
- The father’s shift work had changed, and his hours increased;
- The mother had lost her accommodation in Adelaide and despite searching diligently she could not secure alternative accommodation, so she had no choice but to relocate, and move in with her new partner.
The father’s case was the mother (and children) should be compelled to return to Adelaide because:-
- The parents had negotiated the children’s spending time arrangements and until recently those arrangements had worked satisfactorily;
- The father asked the mother if she planned to relocate, but the mother neither confirmed nor denied this;
- The mother had not made a genuine effort to find alternative accommodation in Adelaide;
- The mother had relocated after deliberately ignoring a letter from the husband’s Solicitor requesting she not relocate out of Adelaide.
- If the mother was permitted to remain living where she was, it would have been very difficult for the Court to unwind those arrangements by the time the matter could be heard at trial. The children and the mother will become embedded in that town.
How Did the Court Approach This Case?
The Court reminded itself of the legal principles including:-
- A decision to change a child’s living arrangements, to an extent that it makes it significantly more difficult for a child to spend time with a parent, is at odds with the legislation which confers a right of children to know and spend time with both parents, and which prefers for the parents to reach agreement about such major long term decisions.
- These cases involving an actual or potential relocation of a child far away from one of their parents, are particularly difficult for the Court involving as they do competing legal principles relating to the freedom of movement on the one hand, and the entitlement of children to have a beneficial level of relationship with both parents, not just one of them (Rowan and Hopkins [2022] FedCFamC2F).
- Relocation cases can have far reaching implications for children who are unable to sustain a relationship with parents over distance.
- A relocation if permitted before all the evidence is tested, can detrimentally impact on any application of the other parent who aspires to be an involved parent in the lives of their children. For those reasons the Full Court of the Family Court has indicated it is preferable for relocations to not be determined against the background of a recent development, particularly if that recent development has been created by the actions of one parent alone.
Conclusion
The Court gave the mother two months to relocate back to Adelaide with the children, finding that it could not condone the mother’s unilateral decision to relocate the children’s primary residence and to change their schools in the face of the stated opposition of the father.
Takeaway Points From This Decision
From the Mother’s Perspective:-
- The mother’s decision to make a complaint of serious assault and later withdraw, undermined her credibility. If her case was that she was fleeing significant domestic violence, she would have stood a much better chance (although it is not an easy case to run) of not having to return to Adelaide.
- The mother’s evidence of her difficulty finding accommodation in Adelaide was not convincing. More was needed in terms of what she could afford, what was available in her price bracket, and what enquiries she had made.
From the Father’s Perspective:-
If you find yourself in the situation where the other parent is planning to move away with your children, you greatly improve your prospects of preventing the other parent from doing so (or making them return), if you do what this father did, and you engage a Solicitor clearly setting out:-
(a) Your opposition to the planned relocation; and
(b) If able to do so, put forward an alternative proposal or arrangement.
The Court concluded that the mother’s unilateral decision to relocate the children’s primary residence and to change their schools in the face of the stated opposition of the father could not be condoned. As a result, the Court gave the mother two months to relocate back to Adelaide with the children.
If you are facing a similar situation, it is important to understand your rights and seek legal advice from an experienced family lawyer. They can help you navigate the legal process and advocate for your best interests.
Call us today on 07 3209 7744.
