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Intrastate Relocation Under the Family Law Act: The Latest Case From the Full Court (2017)


Do relocation cases constitute a special category of parenting dispute?

Relocation matters are not a distinct category of case. They are determined by the same legal principles as any other parenting dispute. There is no burden on the applicant to demonstrate “compelling reasons” before a court will grant a parenting order reflective of the proposed relocation. Ultimately, the court’s inquiry into whether a proposed relocation should be made into a parenting order is an inquiry into the child’s best interest.

The most recent decision of the Full Court of the Family Court of Australia in which these principles were re-affirmed is Vontek & Vontek [2017] FamCAFC 28 (28 February 2017). In this case, the court heard an appeal from the appellant father. One of the grounds of the father’s appeal was that the trial judge had failed to consider the relationships of his three young children, aged five, nine and eleven. The relationships in question included friends, extended family members and, most significantly, the children’s relationship with their father. In this regard, the father submitted that the mother’s proposed re-location would effectively undermine these relationships. Supporting his submission, the father cited evidence of the family report writer, Dr Y. Dr Y’s family report indicated that the children may become “resentful” of having to travel long distances by car, if the mother’s arrangements were implemented.

The mother, who was also the custodial or resident parent in this case, had proposed to move some sixty-three kilometres away from the father’s household. In her evidence, the mother indicated that she would implement flexible arrangements, so as to facilitate substantial and significant time between the children and their father. Neither party had been seeking equal time, in this case.

How Does Court Consider the Child’s Relationship With the Respondent Parent in a Relocation Case?

In Vontek, the Full Court rejected the full force of the father’s submission that the children’s relationship would be undermined. An intrastate relocation will almost inevitability make matters more difficult for the non-custodial, or non-resident, parent. That is simply in the nature of relocating. The question the court must determine, however, is not whether the children’s relationship to the non-custodial parent is ideal. Instead, it is to consider whether the children’s relationship to the non-custodial parent is significantly affected by the relocation. In this context “significantly affected” might be understood to mean: sufficient to justify making a coercive order against the mother restricting her ability to relocate with the children.

In determining this issue, the Full Court took a number of different matters into consideration. It reaffirmed previous authorities in holding that the applicant to a relocation case does not bear the burden of citing “compelling reasons” in support of their application. A parent’s right to freedom of movement can only be restricted to the extent that it adversely affects the child’s best interests.

Turning to s 60CC(2)(a) of the Family Law Act, the court considered the affect that the mother’s proposal might affect the children’s ability to maintain a meaningful relationship with their father. In this regard, it determined that the affect would be negligible. The children had a meaningful relationship with their father. This fact was largely attributable to the parties’ “child-focused” approach to parenting. This ‘child-focused’ approach was characterised by the parties suppressing their tension between them for the benefit children. It was also reflected in the mother’s commitment to preserve and facilitate the father’s relationship to the children.

The effect that the mother’s proposed relocation might have upon the children was also considered. Again, the court found that such changes would be negligible. The father identified concerns about the children’s education. In particular, he cited concerns about the children changing schools upon relocating with the mother. While these concerns were noted by the court, they were held to be of less significance than the father had claimed. There is nothing extraordinary about a children changing schools. They would adjust to their new circumstances in due course. Moreover, both parents were actively involved in facilitating the children’s learning. This in large part stemmed from the fact that both parents, each holding tertiary qualifications, had highly valued education.

There are certain practical difficulties attendant upon relocating children from one area to another. In this case, the mother sought to move the children some sixty-three kilometres from the father. This, in turn, entailed a lengthy car ride in between households. No doubt this would undermine the facility with which the father had previously visited the children. Similar concerns arose in relation to the children’s relationships with their friends and extended family. Of course, the distance between households is not so great that it would limit the father’s time with the children to school holidays. That is not to deny that the relocation would present certain practical difficulties. They would. The important point, however, is that the difficulties are not insurmountable. This fact was underscore by the mother’s evidence expressing her willingness to facilitate a close relationship between the children and the father.

Relocation, Preserving the Child’s Relationships and Practical Difficulties

All relocations give rise to practical difficulties. In the context of Vontek, the court considered whether the practical difficulties in question were insurmountable. Clearly, they were not. Nor was there any real prospect of a diminution in quality concerning the children’s relationship to their father. These appear to be the two most salient factors of the case that led to the Full Court dismissing the father’s case on the grounds that the trial judge failed to consider the children’s relationships.