Father Opposes Mother's Application for Relocation
Jardine & Overton [2021] FCCA 1574 (13 July 2021)
The parties are in dispute over the mother's desire to relocate with their child. The father seeks for the present parenting orders to be maintained. The Court, in making further orders, took into consideration COVID-19's impact to relocation, the mother's right to freedom of movement, and the best interests of the child.
Facts:
The parties commenced a relationship in January 2004. X was born in 2008. The parties separated on 21 May 2010. On 2 May 2012 the father commenced proceedings in the Family Court seeking final property orders. On 23 October 2013 the parties entered into a Binding Child Support Agreement. Pursuant to this agreement, the father provides child support through payment of X’s school fees and related expenses while the mother maintains X’s private health insurance.
Parenting orders provided for equal shared parental responsibility, for X to live with the mother and spend time with the father for two nights each week, half the school holidays and on special occasions. The mother seeks to move to Perth, Western Australia with X, as she has been offered a more secure position of employment. The father is opposed to this and wants the current parenting arrangement to stay in place. The mother gave evidence that she had not sought an exemption to enter WA nor was she certain under what circumstances she could travel to Perth.
However, Sydney, New South Wales ('NSW') is experiencing a serious COVID-19 outbreak and the borders between NSW and other states, including Western Australia ('WA') have been closed. The COVID-19 pandemic adds another layer of uncertainty to the mother’s plan and may also interfere with the father’s ability to maintain his relationship with X.
Issue:
Whether or not X should be permitted to relocate to Perth.
Applicable law:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA - the Court, in making parenting orders, should treat the best interests of children as the paramount consideration.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
If the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
A v A: Relocation Approach [2000] FamCA 751; (2000) 26 FAM LR 382 - established that the child’s best interests, whilst a consideration in a relocation case, is also not the sole consideration.
AMS & AIF (1999) 24 Fam LR 756 - held that a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.
(b) that a parent wishing to move does not need to demonstrate compelling reasons;
(c) that a judicial officer must consider all proposals and may, himself or herself, be required to formulate proposals in the child’s best interests; and
(d) that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
Analysis:
The mother provided evidence that she has unsuccessfully applied for a range of roles commensurate with her experience since 2018. However, the legal representatives for the mother provided to the father a letter from Employer A which confirmed that a workplace restructure proposal affecting the role held by the mother had been approved and her current position “will be redundant”.
However, neither party reports family violence nor other factors that might place X at risk of physical, emotional or psychological harm. It is not disputed that X has a meaningful relationship with the parties and enjoys a strong and loving bond with both parents.
Conclusion:
The Court concluded that it is in the best interests of X for these meaningful relationships to be maintained and nurtured. The Court declared that the Orders of 21 November 2013 shall remain in force. X should remain living in Sydney, NSW with the mother. The mother’s application filed on 4 May 2021 is dismissed. Within 21 days of today’s date, the father shall provide to Chambers written submissions in relation to costs. If no submissions are received the matter will be finalised.