Australian Family Law Court Decisions about Relocation: Parents' Experiences and Some Implications for Law and Policy
| Author | Bruce Smyth,Juliet Behrens |
| Published date | 01 March 2010 |
| Date | 01 March 2010 |
| DOI | http://doi.org/10.22145/flr.38.1.1 |
| Subject Matter | Article |
AUSTRALIAN FAMILY LAW COURT DECISIONS ABOUT
RELOCATION: PARENTS' EXPERIENCES AND SOME
IMPLICATIONS FOR LAW AND POLICY
Juliet Behrens and Bruce Smyth
∗
In Australia, decisions about the post-separation relocation of a parent (usually a
mother) with children where the other parent (usually a father) has opposed this are
increasingly controversial, and have attracted both media and academic attention,
including in the pages of this journal.1 Unlike in the United Kingdom where
restrictions even on international relocations appear from analyses of the reported case
law to be relatively rare,2 decisions in Australia restraining relocations are quite
common.3 There has, as yet, been no Australian legislative reform specifically
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∗ Juliet Behrens is an Associate Professor in the Australian National University College of
Law and a consultant lawyer at Dobinson Davey Clifford Simpson Family Law Specialists.
Bruce Smyth is an Associate Professor in the Australian Demographic and Social Research
Institute at the Australian National University. Rae Kaspiew, a Senior Research Fellow at
the Australian Institute of Family Studies, was a partner investigator on the project, and we
acknowledge her significant input into the analysis. The authors gratefully acknowledge
the Australian Research Council, the Family Court of Australia, the Family Court of
Western Australia, and the Federal Magistrates Court. Also, we are grateful for their
assistance in various ways to Belinda Fehlberg, Anna Ferro, Robert George, Daryl Higgins,
Briony Horsfall, Caroline Long, Jenn McIntosh, Lawrie Moloney, Kristen Murray, Patrick
Parkinson, Cecile Ruegg, Nancy Robertson, Judi Single, Grania Sheehan, and Harry
Venning. We are also grateful for the suggestions of the anonymous reviewers of the
article. Any errors, of course, are the authors' own.
1 Patrick Parkinson, 'Freedom of Movement in an Era of Shared Parenting: The Differences
in Judicial Approaches to Relocation' (2008) 36 Federal Law Review 145; Caroline
Overington, 'Boy, 3, has Alternate Months in Dubai', The Australian (Canberra), 18
September 2009; Caroline Overington, 'Parent Law Ties Women to Men', The Australian
(Canberra), 29 May 2009; Caroline Overington, '"Flaws" in John Howard's Parenting Law',
The Australian (Canberra), 3 June 2009.
2 See Robert George, 'Shifting Law: Relocation Law in New Zealand and England' (2009) 12
Otago Law Review 107; Mary Hayes, 'Relocation Cases: Is the Court of Appeal Applying the
Correct Principles?' (2006) 18 Child and Family Law Quarterly 351.
3 In Patrick Parkinson's study of 58 post-July 2006 relocation decisions of the Family Court of
Australia, Federal Magistrates Court and Family Court of Western Australia, relocation
was allowed in 53 per cent of cases involving disputes between two biological parents:
Patrick Parkinson, 'The Realities of Relocation: Messages from Judicial Decisions' (2008) 22
Australian Journal of Family Law 35. Patricia Easteal and Kate Harkins found that from 30
relocation decisions made after July 2006, half allowed relocation with children: Patricia
2 Federal Law Review Volume 38
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addressing decision-making on the issue of relocation.4 The decisions are made under
the general provisions dealing with post-separation parenting (Part VII of the Family
Law Act 1975 (Cth), hereinafter referred to as the 'FLA'). It has been argued, however,
that court decisions are more likely to prohibit relocation with children in the current
legal environment which, particularly since the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth) encourages orders for shared parenting by, among other
aspects, requiring courts to consider, in certain circumstances, making orders for equal
time or substantial and significant time.5
In 2006 the Commonwealth government's independent family law advisory body,
the Family Law Council, released a report to the Attorney-General on relocation.6 That
report made a number of recommendations for amending the FLA to include specific
provisions on relocation, although recommending against inserting a legislative
presumption as to outcome. These recommendations were not acted on by the
previous federal government which received the Council's report, and the current
government has not given any public indication of whether it intends to implement
them. In any case, the Council recommended that if the changes were to be made they
'should be reviewed when the results of the Australian social science research
currently underway become available'.7
In this article we report some of the results of one of those research projects, and
reflect on the Council's recommendations in light of them. The project is an Australian
Research Council Discovery Project 'Experiences of Parents and Children after Family
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Easteal and Kate Harkins, 'Are We There Yet? An Analysis of Relocation Judgments in
Light of Changes to the Family Law Act' (2008) 22 Australian Journal of Family Law 259, 263.
4 Although there are provisions in the FLA which specifically relate to relocation contexts:
for example, the s 4 definition of 'major long-term issues' notes that:
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is
not, of itself, a major long-term issue in relation to the child. However, the decision will involve
a major long-term issue if, for example, the relationship with the new partner involves the
parent moving to another area and the move will make it significantly more difficult for the
child to spend time with the other parent.
Also the 'additional considerations' for assessing children's best interests in FLA s 60CC(3)
include
(e) the practical difficulty and expense of a child spending time with and communicating with a
parent and whether that difficulty or expense will substantially affect the child's right to maintain
personal relations and direct contact with both parents on a regular basis.
5 Patrick Parkinson has suggested that 'relocation has become significantly more difficult
than it was before 2006': Parkinson, above n 3, 38. See, however, Juliet Behrens, Bruce
Smyth and Rae Kaspiew, 'Outcomes in Relocation Decisions: Some New Data' (2010) 24
Australian Journal of Family Law (forthcoming), in which the problems with comparing the
pre- and post-reform data are referred to. In a recent decision which may affect the trend of
outcomes in relocation decisions, the High Court has found that it was not open to the
Federal Magistrate at first instance to find that it was reasonably practicable for the child to
spend equal time or substantial and significant time with both parents, and that an order
for equal time (which effectively restricted the mother's relocation) should not have been
made: MRR v GR (2010) 84 AJLR 220.
6 Family Law Council, Relocation Report (2006).
7 Ibid 24. At the time, two studies were underway: one by Patrick Parkinson and Judy
Cashmore (University of Sydney); and this project by Juliet Behrens, Bruce Smyth and Rae
Kaspiew.
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