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Family law relocation: no need for “compelling reason” to move

By October 1, 2020February 23rd, 2024No Comments

Family law relocation: The recent case pseudonymised as Gusta & Gusta heard in the family courts raises some issues around family law relocation matters. If you have been considering steps to take in relation to a family law relocation—whether you wish to move away with your child, or you wish to prevent the other parent moving—it may interest you to know that the courts can’t prevent you moving on the basis that you haven’t demonstrated a “compelling reason” for wanting to do so. Although intuitively it may feel as if it would sway a court in your favour if you can prove you have a really good reason for moving, in truth family law relocation matters are determined by many different factors.

In the Gusta & Gusta matter, a trial judge had been satisfied it was in a child’s best interests for the child to continue to live in Perth and not relocate. The 6 year old child’s mother then appealed the ruling, arguing that the trial judge had effectively required her to prove she had compelling reasons for wanting to move. She also tried to argue there was a gender bias present, arguing the trial judge had given too much weight to the father’s chosen career compared to her choice of work. But all her arguments were dismissed on appeal.

The gender argument

Counsel for the mother suggested that the case was “evaluated through the prism of a gendered preference for men and the mother was stereotyped as ‘performing her gender-appropriate helping role’”.

However, the appeals court said that this did “not withstand scrutiny of the trial transcript or the reasons for judgment”. In fact, the court accused the mother’s counsel of misstating the facts:

“The primary judge did not use the words appearing in quotation marks at paragraph 20(a) of counsel for the mother’s Summary of Argument or anything like them. They are a misleading rhetorical flourish. It is reasonable to assume that the flourish was introduced so as to counter the inconvenient truth that a fair analysis of the trial transcript and reasons for judgment does not reveal obvious error.”

But the appeal judges proceed to take the “gendered hyperbole” out of the equation and simply look at the assertion that the primary judge erred by giving the father’s employment commitments more weight than those of the mother.

The problem is, disputes over weight are “notoriously difficult and merely because another judge might have weighed matters differently, it is not a basis for appellate intervention”.

The appeal court pointed out that even with the same body of evidence, outcomes in parenting cases can produce different but still “reasonable” conclusions from different judges. It boils down to the exercise of discretion, which is fundamental to the role of the judge. Unless there is clear legal error or an outcome is clearly unjust, the appeals courts will not interfere with a trial judge’s decision.

Do you need to have a “compelling reason” to move?

In fact the courts cannot require a parent to have to prove they have “compelling reasons” for wanting to relocate to live somewhere else. A person’s case can’t fail simply because they didn’t prove they had a good reason to move.

The principles around “compelling reasons” have been well settled in the case law. A case often cited is Adamson & Adamson, where it was said:

“In parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence…The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire.”

“These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.”

In the Gusta & Gusta case, the mother’s argument was that the primary judge erred by “effectively requiring her to demonstrate compelling reasons in favour of her application to remove the child to Town A”.

The appeals judges said: “There is no doubt that if the mother’s case was evaluated on this basis, the primary judge will have fallen into error.” But they showed that the primary judge was “astute to the issue and expressly acknowledge that the mother ‘does not need to have compelling reasons for wishing to move to Town A and that my task is to make such orders as I consider would be in [the child’s] best interests’”.

The appeal court judges said the primary judge had correctly considered many factors, not just the parents’ reasons for wanting to relocate or not.

“When the substantive trial reasons are read in their entirety, it is clear that the primary judge did not require the mother to establish ‘compelling reasons’ for the relocation and the case was decided by reference to a multiplicity of factors which informed his Honour’s determination as to the ultimate decision.”

What do you have to prove in a family law relocation case?

Theoretically it’s pretty simple—you just need to show that relocating with your children is in their best interests (not yours). This will involve thorough research to be able to show a court the practicalities of how the child will live in a new location and maintain contact with the other parent.

A court will be interested in a well-thought out plan on a potential move and it’s still useful to include information on why the move is desired. While it can’t be seen as a “compelling reason” behind the grant of a relocation, the reasons behind the proposed relocation can still be relevant to a case. For example, if a parent proposes they will be able to get a better job in the new location, this has the potential to benefit the child—and this is why the courts will still consider parents’ reasons for wanting to relocate.

Sometimes, issues that appear to centre around the best interests of the parents are conflated with a child’s best interests. For example, in one relocation matter heard in the courts, a mother was found to be in danger of suffering depression if not permitted to move, which would affect her parental capacity and therefore ultimately the best interests of the child. Other factors that might also be relevant is if one parent is seeking to relocate to an area where they have family support.

In another case, a mother was permitted to relocate internationally because she said she would go anyway whether or not the children were allowed to join her. It was found to be against the children’s best interests to remain living in Australia without their primary caregiver and she was therefore permitted to relocate overseas with the children.

You can read the Gusta & Gusta case in full here.

You may also like to read our blogs on building your case for parental relocation and what a court considers in a relocation case.

If you have any questions regarding a family law relocation matter, 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.

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