One of the principle proponents of the 2006 "shared
care" amendments to the Family Law Act 1975,
Professor Patrick Parkinson of the Sydney University Law School,
has openly commented that those amendments "ought to make
relocation harder." It should be harder, because in a case
where both parents spend time with a child or children, both have
meaningful relationships with them and both exercise their parental
responsibilities with diligence, a relocation simply nullifies
Professor Parkinson's view is that relocation should be a
rarity; indeed only happen when the non-relocating parent has
"dropped out of the children's lives."
Interestingly, the word "relocation" does not appear
in the Family Law Act 1975. Nor does the legislation
require the courts to consider "relocation" cases in any
different way. Yet they are the most difficult types of parenting
cases the courts face.
Recently, the Full Court has just delivered judgment in
McCall & Clark  FamCAFC 92. In that case, the
Mother of a 4 year old boy was permitted by the Federal Magistrates
Court to reside with the child in Dubai, UAE. The Full Court
overturned the orders and has remitted the matter back to the
Federal Magistrates Court for rehearing.
Relevant to the Court's determination was that neither party
submitted that there ought to be anything but equal shared parental
responsibility and that prior to separation both parties maintained
healthy loving relationships with the child.
The Court also noted that the Federal Magistrate was without the
benefit of a family report, nor was an independent children's
Critically, the Court held that where there is a presumption of,
or agreed, equal shared parental responsibility, the Court
must consider whether spending equal time with
each parent is in the child's best interests and reasonably
practical, then must consider whether spending
substantial and significant time with each parent is in the
child's best interest and reasonably practical.
The Court held the Federal Magistrate failed to properly
consider the merits or otherwise of the child living in Australia
with both parties so that a meaningful relationship could be
developed and maintained with the child.
It seems to us that the presumed intentions of the "shared
care" amendments as expressed by Professor Parkinson are
bearing fruit. Given that one of the primary considerations a court
must consider in the determination of the question of "best
interests" is the benefit of a meaningful relationship with
each party, the court simply cannot properly determine a contested
relocation case (particularly an international one) unless the
merits of forcing the party who wants to relocate to stay so that a
meaningful relationship can be maintained by both parents are
considered. Following, once a party establishes, either alone or
with the benefit of a family report, that the quality or meaning of
the relationship will be damaged or diminished by relocation, as it
inevitably must, the chances of successfully applying to relocate
become remote indeed.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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