Cameron McKenzie I quickly read the case and noticed that the applicant engaged senior counsel for the application, which was basically an unsuccessful attempt to have the mother’s application dismissed before being heard. So this application could be considered more of an (ill considered?) tactic rather than simply opposing the mother’s relocation application.
The high threshold in Rice & Asplund is designed to prevent re-litigation and more directed to fine tuning orders in the presence of a significant change in circumstance. Not surprisingly this application failed. The mother was not re-litigating but rather seeking permission of the court to amend orders to relocate, which is the most appropriate mechanism and a significant change in circumstance.
In this matter the court, to a degree, has gone further and outlined some considerations that would likely be considered at the relocation application hearing.
If a parent seeks to relocate with a child to a location which would affect the ability of the other parent to spend time with the child, including if the proposed arrangement involves a move to a different country, she or he must demonstrate that the proposed arrangement is in the best interests of the child. The party who seeks to relocate is not required to demonstrate ‘compelling reasons’ for the relocation, however, the court must evaluate the proposals advanced by both parties.
“It is important for the court to consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of that parent”. A v A citing Holmes and Holmes (1988) FLC
The court must have regard to the legitimate proposals advanced by each of the parties to the dispute. The court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfill the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.
The court will particularly consider advantages to the primary care provider, such as employment, family support, better schools etc. Importantly, the court will likely ask why the other parent is unable to relocate to the new location.
In affidavit and at hearing, be mindful of the possible arguments to be raised and counter arguments. It is very important that relocation decisions will turn on what is in the best interests of the children and not about the rights or misconduct of the parents.