Freedom of Movement in an ERA of Shared Parenting: The Differences in Judicial Approaches to Relocation

AuthorPatrick Parkinson
Published date01 June 2008
Date01 June 2008
Subject MatterArticle
Patrick Parkinson*
In 2006, Parliament made major amendments to the Family Law Act 1975 (Cth) ('Family Law
Act') to encourage a greater level of shared parenting, and to give greater emphasis to the
importance of children maintaining a relationship with both parents in the absence of violence
or abuse. There are major differences between trial judges in how to apply the new laws to the
problem of parental relocation — where the primary caregiver wants to move a long way from
the other. The central problem is determining how much importance should be given to a
parent's freedom of movement given this greater emphasis on the involvement of both parents.
There are stark differences in the policy and approach of different trial judges, which have yet to
be resolved by an authoritative and carefully reasoned decision of an appellate court.
This article examines these substantial differences in view between judges on this issue since
the 2006 amendments, and proposes a way forward based upon revisiting the leading judgment
of Kirby J in the High Court in AMS v AIF.1
Relocation disputes arise when the primary carer of the child, following separation,
wants to move a long way from the other parent, making it much more difficult for
that parent to spend time with the children, and that move is opposed by the other
parent. Relocation is widely regarded as one of the most controversial and difficult
issues for family courts.2 A New York court wrote in a leading case that relocation
cases 'present some of the knottiest and most disturbing problems that our courts are
called upon to resolve.'3
* Professor of Law, University of Sydney and Special Counsel, Watts McCray Lawyers. This
research was supported under Australian Research Council's Discovery Projects funding
scheme (project number DP0665676). Thanks to Professor Richard Chisholm and to the
reviewer for comments on an earlier draft of this article.
1 (1999) 199 CLR 160.
2 W Dennis Duggan, 'Rock-paper-scissors: Playing the Odds with the Law of Child
Relocation' (2007) 45 Family Court Review 193; Tim Carmody, 'Child Relocation: an
Intractable International Family Law Problem' (2007) 45 Family Court Review 214; John
Croker, 'Relocation — Can I Go or Must I Stay?', Handbook of the 13th National Family
Law Conference, Adelaide, 2008, 13.
3 Tropea v Tropea, 87 NY 2d 727, 736 (NY, 1996). See also the comments of the present Chief
Justice of the Family Court of Australia, the Hon Diana Bryant, quoting the observation
that relocation cases 'pose a dilemma rather than a problem: a problem can be solved: a
dilemma is insoluble': House of Representatives Standing Committee on Legal and
146 Federal Law Review Volume 36
At the heart of the problem of relocation is the tension between the children's right
to maintain a relationship with both parents, and the freedom of movement of the
children's primary carer. Major amendments to the Family Law Act by the Family Law
Amendment (Shared Parental Responsibility) Act 2006 (Cth) which came into effect on 1
July 2006, have meant that the resolution of this tension by judges now occurs in a
different context from before. These amendments, taken together, place a primary
importance on the benefit to the child of a meaningful relationship with both parents
and require judges to consider making orders that have the effect of sharing the
parenting — substantially if not equally.
Major differences have emerged between trial judges on how to interpret and apply
the new law to relocation cases. In particular, there are very different views about how
to evaluate the importance of freedom of movement when that freedom would disrupt
a meaningful relationship between the child and the other parent. A full bench of the
Full Court has yet to offer any clear guidance on the fundamental issues of policy and
statutory interpretation involved.
In this article, the different approaches to this issue that have emerged are
reviewed, and solutions identified consistently with the statements of principle in High
Court authorities, and in particular, the leading judgment of Kirby J in AMS v AIF.4
Under the law prior to 1 July 2006, the legislation did not accord a particular priority to
any factor or group of factors, leaving it to the court to give the various factors
whatever weight seemed appropriate in the circumstances of each case.5 The law of
relocation, under this statutory regime, was reasonably well settled, as a result of two
High Court decisions.6 However, Kirby J made it clear in the first of those cases, AMS
v AIF, that 'each case depends on the application of the governing legislation which, in
turn, is in a constant state of amendment and re-expression.'7
The 2006 legislation represents the latest move by Parliament to amend and re-
express the part of the Family Law Act concerned with parenting arrangements. It
divides the relevant considerations into primary and additional ones (s 60CC of the
Family Law Act). The primary considerations are '(a) the benefit to the child of having a
Constitutional Affairs, Parliament of Australia, Report on the Exposure Draft of the Family Law
Amendment (Shared Parental Responsibility) Bill 2005, (2005) 22.
4 (1999) 199 CLR 160.
5 Family Law Act s 68F(2) as it was prior to the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth).
6 AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238. A succinct summary of the law
was given by the Full Court of the Family Court in Bolitho v Cohen (2005) 33 Fam LR 471,
472 explaining the effect of the High Court's decision in U v U: 'The proper approach to be
adopted in a relocation case is a weighing of competing proposals, having regard to
relevant factors in s 68F(2) of the Act, and consideration of other relevant factors, including
the right of freedom of movement of the parent who wishes to relocate, bearing in mind
that ultimately the decision must be one that is in the best interests of the child.' There was
neither a presumption for nor against relocation. The parent who wished to move did not
bear any onus of proving that the relocation was bona fide or reasonable: AMS v AIF (1999)
199 CLR 160.
7 AMS v AIF (1999) 199 CLR 160, 206.

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