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Family Law

Coercive relocation orders: can you be forced to relocate?

By January 10, 2020February 23rd, 2024No Comments

A mother has successfully appealed court orders that had compelled a forced relocation with her kids back to NSW from Queensland, with the case highlighting some of the issues relevant in relocation proceedings.

In the case pseudonymised as Franklyn & Franklyn, a couple had been working out parenting arrangements for a young child. Interim parenting orders were made and the child was to have blocks of supervised time with the dad. The mother had originally moved “within reasonable driving distance of the family farm” in central NSW after the couple split. But at some stage, the mother relocated to southeast Queensland without the father’s knowledge or permission. She was then ordered to return and appealed this decision.

Balancing parents’ rights with children’s rights

Coercive, forced relocation orders are mandatory injunctions “forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children’s best interests”, said the appeal judges.

They noted the typical “inherent tension” of relocation cases, because they balance adults’ freedom of movement against children’s right to a meaningful relationship with each parent.

This tension is greatest when it’s not just about restraining a parent from moving further away, but forcing a parent to move to a specific location, or to return to an area and re-establish a home close to the co-parent.

However as the judge in this case noted, “coercive orders requiring the mother and the children to relocate are not usually made”.

Most relocation cases involve a parent applying to the court for permission to move somewhere and the other parent trying to prevent them. Forced relocation cases that compel a parent to move somewhere usually need to have some extreme or exceptional component to them to succeed.

Courts take the view that a parent’s right to freedom of mobility should only matter if a move, or lack of a move, threatens the child’s welfare.

Theoretically, parents should be able to establish new homes wherever they wish. In practice though, it has to be near enough to a co-parent so as not to impede children’s ability to see both parents.

How cases are decided depends on the unique features of each case. The courts have to weigh up a wide range of factors, attributing different amounts of weight to each.

Complex case

In this forced relocation case, there were issues around parental alienation and family violence, but these remain to be tested at the final hearing. The mother claimed the father posed an unacceptable risk of harm to the child and the father claimed the mother was alienating him from the child.

As to the family violence allegations, the primary judge had found the father did not pose an unacceptable risk to the child. Towards this went the father’s denial, the lack of corroboration, the lack of allegations since separation and the rejection of the mother’s allegation by another court (a State court).

There was some support for the idea that the mother was deliberately alienating the young child, including from the Independent Children’s Lawyer. It was also noted that the couple’s eldest child (not included in the current proceedings) was highly resistant to spending time with the dad.

Not quite “parentified”…

The judge noted this older child’s resistance to spending time with dad was probably because he was “acutely aware his mother does not support him doing so”. The judge stated: “He has become parentified.”

“Parentified” refers to children who have been made to live as mini adults, such as when they take on caring roles for siblings or parents.

Mistakes around weight given to factors

The appeal court found that the trial judge erred by not putting enough emphasis on several planks of the mother’s evidence about the practicality of a forced relocation back interstate.

There was little weight given to factors such as employment and income opportunities in the respective states, an “important feature of the evidence [that] deserved more weight”. It became even more salient since the mother had obtained employment in Queensland.

Although the original orders gave the mother five weeks in which to move back, she argued this was insufficient. There was unpredictable short-term rental accommodation, in-town accommodation was relatively unavailable, the children would suffer further instability from another move, and the mother lacked a vehicle. The primary judge hadn’t given these factors enough weight.

There was a “failure to attribute any weight at all” to the factor of the mother’s tangible family support in Queensland, namely the provision of reliable childcare by her brother.

The judge had also not given enough weight to the mother’s motivation to move away in the first place—namely, her asserted fear of her ex. The weight had not been applied “because an incorrectly made finding about [the mother’s] lack of credit collectively resulted in the miscarriage of the primary judge’s discretion”. The primary judge had found mother’s uncorroborated evidence lacked credibility and suggested a degree of exaggeration. But this could have been tainted by his view of her not following his orders.

Ultimately, rather than make a coercive order “denying the mother her freedom of choice about her place of residence”, the primary judge could have made arrangements where the child would spend more time, just less frequently with the father.

Legal mistakes the judge made

In this case, the appeal court found the trial judge had also made several errors at law, including failing to read two affidavits expressly relied on by the mother.

Here the judges noted that the practice of parties relying on multiple affidavits in an interim hearing is “firmly discouraged in both the Federal Circuit Court…and the Family Court of Australia”, and that Practice Directions should have clarified this. They said it was the trial judge’s responsibility to have either applied the relevant Practice Direction or exercised discretion to prevent the couple relying on multiple affidavits.

The trial judge had also wrongly concluded the mother had failed to comply with his procedural orders, criticising the mother for having “engaged in obfuscation”. However, as the mother had actually complied with procedural orders, that finding was wrong. The judge’s negative finding about the mother’s credibility coloured how her other untested evidence was received, so the damage to the mother was done.

Such errors of law have the potential to cause a miscarriage of justice to occur or to influence the end result of the trial. For these reasons the appeal was allowed. The interim order requiring the mother to move back to NSW was dismissed.

Some takeaways from this case?

  • Coercive power to compel parents to relocate is rarely used in the courts.
  • Compelling parents to relocate depends on there being some “extreme” or “exceptional” factors involved.
  • If there is an alternate practical option to be considered, enforced relocation doesn’t have to occur.
  • Always ensure the judge has evidence relating to the practicality of relocation proposals as against the status quo.
  • Also provide evidence about the existence of any (or the lack of any) family support which could impact the welfare of the child and therefore be material considerations.

You can read the full case here.

We compiled some useful tips on how you can help build your case for relocation. Or you might also like to read our blog on a relocation case which turned on the mother’s unhappiness and depression if she were not allowed to move.

Do you need any help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services 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 Legal Services.

You can also read the Family Court’s guidance on the subject of relocation.

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