A recent Appeal from a decision by a Federal Circuit Court Judge has raised some eyebrows among some family law practitioners.
In this case, the mother had been the primary carer of twin boys, aged eight years of age. About six years had lapsed since separation. During that time, the father had enjoyed sporadic contact, but more recently, each alternate weekend with his twin sons. There was no doubt that the mother was the primary carer of the children.
The mother made a unilateral decision to relocate with the children about 88 kilometres away from her current residence. This was said to be due to family and health reasons. The father brought an Application for shared care (week-about) of the children and in the event the mother did not return to the children’s hometown, then he sought that the children primarily reside with him.
At first instance, the Federal Circuit Court Judge was concerned about the unilateral decision by the mother to relocate (without the consent of the father and without an Order of the Court) and did Order that the children be returned. The Orders were said to provide that the mother return and the father to have increased contact leading up to a shared care arrangement.
The mother successfully stayed the Orders and then was successful on Appeal.
The Appeal Court, in an unanimous decision, held that the Trial Judge was distracted by the classification of this case as a “relocation case”, rather than focusing on his own findings that were essentially, that the overarching and certainly the more significant factor was the attachment that the boys had to the mother as their primary carer. This was a finding by the Trial Judge.
The Full Court emphasised the need for His Honour to have dealt with simply the competing proposals of the parents, rather than focus on the issue being a relocation case.
It is important to remember that the facts of this case are quite specific. It was a long period of separation (of some six years) before the mother relocated and further, when she did relocate, it was only a short distance of some 88 kilometres. The actual weekend contact could still take place in those circumstances. However, the case is somewhat surprising in that a unilateral decision was made and an interim change in the children’s residence was allowed to take place. In other words, in these cases, the Court would usually make an Order for the children to be returned to their usual place of residence, at least until an urgent Trial could take place to determine issues on a final basis.
If the Court regularly did not do this, then there would be little disincentive for parents to make unilateral decisions to relocate with children prior to a matter reaching a final Trial.
In this case, the practical effects are quite substantial. What chance does the father now have in obtaining an Order for shared care, or even for an increased contact Order? It is suggested that his chances are practically nil. In other words, the Court, through its decision, has effectively determined the matter on a final basis, even though it is an interlocutory decision.
It is suggested that whilst the case can be distinguished on its peculiar facts, it still sounds a warning bell for those practitioners and parties who were previously of the belief that one should not give advice to clients to unilaterally relocate (on an interim basis) within the Commonwealth of Australia, because of the obvious legal ramifications and Orders that would be faced by clients who do so. That advice should now be reconsidered.