FATHER OPPOSES AGAINST THE APPLICATION FOR THE CHILD’S #RELOCATION
HARLAND & HARLAND
FAMILY COURT OF AUSTRALIA
[2020] FamCA 321
In this case, the principle of Rice and Asplund[1] is revisited. The father relies on this principle as basis for his application for interim orders for the dismissal of the mother’s application for the relocation of their child.
FACTS:
Mr. Harland (the father) and Ms. Harland (the mother) are the parents of X who is aged seven years. In the final parenting orders made by consent in 2017, it provided for X to live with the mother and to spend time with the father on Wednesday and Thursday evenings in one week and, in the alternate week for the Thursday evening to be extended until school on Monday. In addition, the orders provided for X to spend half of the school holidays with the father.
The mother filed an application wherein she sought to relocate X’s place of residence from Sydney to Town P, which was opposed by the father and was sought for dismissal pursuant to the Rice v Asplund principle.
ISSUE:
Whether or not the father’s application for an interim order should be granted.
HELD:
The father relied on the Rice & Asplund principle as basis for his interim order application. According to the principle, the court should have regard to any earlier order and to the reasons for and the material on which an order was based. The court should not lightly entertain an application to reverse an earlier custody order as to do so would be to invite endless litigation for change is an ever present factor in human affairs.
The principle is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[2]
All the same, there are significant changes that occur and that require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. In making a decision, the court must consider the past circumstances, the evidence on which the decision was based and whether there is a likelihood of orders being varied in a significant way as a result of a new hearing. [3]
In this case, the mother sought for X to live with her and Mr. H, her present husband, in Town P, and for arrangements whereby X could time with her father and paternal family be varied to accommodate the relative distances involved. The mother proposed a significant change of circumstances for X and it is arguable that the current orders might be significantly changed if a court were to hear and determine the application. However, the mother’s freedom of movement and her right to live where she wishes to live are important rights, which the law upholds and which are not lost by reason only of the responsibilities that go with custody and guardianship of a child.[4] On this basis, the Court dismissed the father’s interim application.
[1] Rice & Asplund (1979) FLC 90-725.
[2] Warnick J, Ibid.
[3] Mahoney & Dieter [2019] FamCAFC 39
[4] Kirby J. stated in AMS v AIF (1999) 199 CLR 160.#relocation
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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.