Article by Eales & Mackenzie
Clearly there are situations where no solution will address all the needs of the children and their parents.
In the case detailed below, the Full Court held that the relevant factors in deciding what will be within the best interests of a child are:
the degree and quality of the existing relationship between the children and each parent;
the degree and quality of the existing contact between the children and the contact parent;
the reason for the relocation – the judgement emphasised the importance of personal relationships and, as in this case, the desire to remarry;
the distance and permanency of the proposed change;
the ages and wishes of the children;
the feasibility and cost of travel;
alternative forms of contact; and
the dislocation from other aspects of the child’s former environment such as schools, friends, and extended family members.
The recent decision of the Full Court of the Family Court of Australia in B & B: Family Law Reform Act 1995 (1997) FLC.A.92-755 provided an opportunity for the Family Court to examine the impact of the Family Law Reform Act (which came into operation in June 1996) generally, and in particular, in relation to cases where one of the parents is wishing to relocate.
The Full Court observed that prior to June 1996 (under the previous legislation); the Court usually made a custody order in favour of one parent and an access order in favour of the other parent. The custody order carried with it not only residence but also powers in relation to the day-to-day care of the children. Now the structure of the Act is that the norm is residence and contact orders, meaning who the child lives with and who the child has contact with, leaving all other powers, authority and responsibilities in relation to the child to be shared between the parents. If either parent desires to alter that position it is necessary for that person to apply for a specific issues order.
However, the Court now, as previously, is required to determine what is in the best interests or welfare of the particular child. The Family Law Reform Act has not changed this principle.
In B & B the parties married and lived in Cairns. Following their separation in February 1991, they obtained consent orders in the Family Court in May 1993, granting custody of the children, then aged 8 and 6, to the wife with the husband having regular weekend access.
In 1994 the wife renewed association with a man she had known prior to the marriage and informed the husband that she intended to move to Bendigo with the children.
The husband applied to the Family Court for custody. The trial judge found that although there had been significant conflict between the parties since the separation, both were, in their respective capacities, loving and involved parents. He found that the mother was extremely distressed at the prospect of not being able to remarry and move away with the children. He found that although parents’ interests are subservient to those of their children, the mother’s quality of lifestyle in this case and her capacity to cope and / or mental health would be diminished or detrimentally affected by her inability to relocate and that there might be an adverse impact on the children’s best interests. He accordingly made an order granting the wife power to relocate to Bendigo with the children.
The father appealed against the decision to the Full Court. At the time of the hearing the children were aged 12&10. The Full Court heard submissions from the father, who focused his objections on the Courts attention on the right of children to have contact with both parents; from the mother, who argued that the new legislation did little more than restate the previous position; from the Human Rights Commission which argued that the well being of family members and the freedom of parents to exercise their human rights are factors in determining what is in the best interests of the child; and finally, from the Attorney-General Daryl Williams QC who appeared on behalf of the Commonwealth and who emphasised the importance of children’s rights under the new legislation.
The Full Court dismissed the husband’s appeal and remarked that “to freeze both parents at the location to which they went after separation so that the child may continue to have contact with each of them is most unlikely to serve the long-term best interests of the child”.
This decision does not set a rule that automatically allows parents to relocate with their children. Instead, it emphasises that each case will involve a delicate balancing of its own particular circumstances and an adjudication of what is in the best interests of the children.