Relocation matters often arise in the family courts. But they are usually either applications by a parent to relocate with a child, or applications by a left-behind parent to have a co-parent be made to return after a unilateral relocation with a child. Sometimes, however, a court might need to consider whether a parent has to be compelled by court order to move to a particular location that is deemed in the best interests of the child. Theoretically, the courts do have the power to order a parent to relocate to a specific place. However, such orders are made very rarely, due to the fact that they impose such a severe restriction on an adult’s freedom of movement.
(Can the family court order you to relocate? …continued)
A recent case in the appeals division of the Federal Circuit and Family Court of Australia sheds light on this kind of situation. The matter (given pseudonyms Pascall & Heath) was a mother’s appeal against various parenting orders for a four year old child, including one which required the mother to move to live within a 30 kilometre radius of the father’s home. The mother, who currently lives within a 40 kilometre radius of the father’s home, would therefore be required to move house.
The father, for his part, was restrained from relocating his residence away from the present suburb where he lives. In both cases the orders were to apply until the child turns 18 years of age or completes her year 12 studies, whichever happens first. The mother’s appeal was opposed by the father and by the Independent Children’s Lawyer (ICL).
Authority for forced relocation orders
Authority in this area is obtained from a case known as Sampson & Hartnett (No. 10) (2007) FLC 93-350) where the Full Court considered the family court’s powers in relation to making orders that require an adult to live in a specific place.
In that case, it was found that since the court has the power to prevent someone from relocating, “it would be surprising if it was not within power to order a person to relocate”.
The conclusion was that there is power under s114(3) of the Family Law Act 1975 to order someone to relocate to a particular place.
As always, though, the proviso is that the relocation must have been deemed necessary in the best interests of the child.
In that case, it was also noted that the effect of forced relocation orders is “more drastic” than simply orders not allowing a parent to move. That’s because:
“The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go some where [sic] and therefore the order is much more of an imposition on that person’s freedom.”
What happened in this particular case?
In the recent matter Pascall & Heath, the mother and father themselves had put forth various proposals limiting the co-parents’ freedom of movement:
“The father initially proposed an order requiring the mother to move to reside within 10 kilometres of his house, but later changed his mind and supported the order proposed by the ICL [for a 30 kilometre radius limit].
“For her part, the mother proposed an order that the parties live not more than 70 kilometres from each other (at ). That order is not quite so prescriptive in that it does not require any party to move, but is none the less a restriction on both parties’ movement.”
The appeal judges found that neither counsel for the Independent Children’s Lawyer nor the father could give a reason why the arbitrary 30 kilometre distance limit should be imposed and found that the mother’s arguments were not taken into account. This meant that the appeal judges found the primary judge had erred, and the appeal was allowed in part.
The appeal judges noted their “disquiet about making any order that is prescriptive as to where an adult must live” but re-exercised their discretion on the issue to make an order requiring the mother to live within a 40 kilometre limit instead, thereby preventing the need for her to move.
Ultimately, compelling parents to relocate to a particular place is rare in the courts. It usually depends on there being some extreme or exceptional factors involved and must be determined to be in the child’s best interests.
You can read the above-mentioned judgment in full here.
You may also like to read our blog: Building your case for parental relocation.
If you need any assistance with a matter involving a potential relocation of a child, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.