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Relocation Orders, Child to be returned to Fathers Care : Conlan & Tomlinson [2019]– CHILDREN

Conlan & Tomlinson [2019] FamCA 93 (27 February 2019)

The child is 8 years old and is subject to final parenting orders that provided for both parents to have equal shared responsibility. The child resides with the mother and spends time with the father. The child has a good relationship with both parents.

However, the father subsequently applied to restrain the mother, and Interlocutory orders were made, the father alleged the mother had threatened to relocate the child to the United Kingdom for a period of time and enrol the child there for school; provisions were made regarding international travel.

It’s important to note at this point, the mother had previously removed the child from school, enrolled and removed her from another school and then commenced home schooling without the fathers consent. The orders also state for a psychologist to support the child’s anxiety and the return of the child back to mainstream school.

The mother- pending final orders, notified the father of her proposal to relocate with the child to the ACT, the father considered it but did not consent. The mother then relocated with the child, notifying the father of the location and the mainstream school the child was enrolled in.

The father has now filed an application in a case seeking the return of the child to live within a 40 km radius of him with the mother, or for a recovery order for the child to live with him if the mother does not return. He sought orders related to schooling arrangements for the child and for costs. The relocation by the mother is in conflict with the orders made in relation to equal shared parental responsibility.

The mother now seeks orders allowing the child to remain in the ACT and to ultimately relocate to the UK with the child.


  • Interim Parenting Orders.
  • The mother made a unilateral change in the face of final parenting orders.
  • The mother and child relocated to the ACT without the fathers consent.
  • The mother further proposes relocation to the UK with the child.
  • The father has applied for orders seeking the child be returned to the area with the mother, if the mother does not return, for the child to reside with him.
  • The mother seeks to remain with the child in the act with intentions to ultimately relocate to the UK.


Is it in the child’s best interest to remain in the ACT with the mother?


It was ordered for the child to be promptly returned to the town to the fathers care, the exception is if the mother returns as well, then the child will live with her and have access to the father. The mother may also select the school for the child, however she is prohibited to change the school without the consent from the Father.

If the Mother does not return with the child, she will remain with the father and time spent with the mother will have to be considered. Furthermore, it was established the mother’s conduct was in contravention of the final orders, however, punishment for breach was not a concern in these proceedings.

The court considered the child to remain in the ACT with the mother, nonetheless there was significant concern regarding the accumulative instability in the child’s life over a period of time from the choices and conduct by the Mother

It was stated at [35] the child had changed schools once and then been removed from school completely to be home-schooled. She has then changed home, changed city, and enrolled in a new school and now there is a proposal that she may relocate to a new country.

It was therefore determined in the best interest of the child that there is a significant need for her to be provided stability, at the very least during the circumstances of the current proceedings, even if it means abrupt interruption for the child and possible amendment of primary carer.


Legislation and Principle Cases

Family Law Act 1975 (Cth) s 65DAA  s 60CC  

Goode v Goode  [2006] FamCA 1346

Morgan v Miles [2007] FamCA 1230;  (2007) FLC 93-343

Rice & Asplund [1978] FamCA 84;  (1979) FLC 90-725

U & U [2002] HCA 36;  (2002) 211 CLR 238

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