Relocation

Understanding the Issues

 Relocation is not treated by the Courts as a
separate category of case – B and B (1997)
FLC 92-755

 “The process in deciding a relocation case is

not decided in an abstract or theoretical
environment” (Health & Hemming (No2)
[2011] FamCA 739 paragraph 100 Kent J)
Understanding the Issues
 A v A: Relocation Approach (2000) FLC 93-
035
◦ Court cannot determine the issues in a way that
separates the issue if relocation from that of
residence and best interests of the child.
◦ Compelling reasons for or against the relocation
need not be shown.
◦ The best interests of the child are to be evaluated
taking into account considerations including the
legitimate interests of both the ‘residence’ and
‘non-residence’ parent.
◦ Neither party bears an onus.
Understanding the Issues
 A v A: Relocation Approach
◦ Treating the best interests of the child as the
paramount consideration fdoes not oblige a court
to ignore the legitimate interests and desires of
the parents. If there is a conflict between these
considerations, priority must be accorded to the
child’s welfare and rights.
◦ If a parent seeks to change arrangements
affecting the residence/contact of the child, he or
she must demonstrate the proposed new
arrangement is in the best interests of the child.
Understanding the Issues
 HCA considered in U v U (2002) FLC 93-112
– left A v A unchallenged.
 Bolitho v Cohen (2005) FLC 93-224 – Court

upheld A v A:
“the proper approach to be adopted in a relocation
case is a weighing of the competing proposals,
having regard to the relevant factors of the FLA,
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 which is in the
best interests of the child.”
Understanding the Issues
 First case post 2006 amendments was M &
S (2007) FLC 93-313. Court held that the
pathway in Goode ought to be followed and
nothing explicitly altered the previous
approach to relocation, except a intent for
substantial involvement of both parents.
 See Taylor & Barker (2007) FLC 93-345,

Morgan & Miles (2007) FLC 93-343, Mulvany

& Lane (2009) FLC 93-404, McCall v Clark
(2009) FLC 93-405.
Understanding the Issues
 But see Hepburn v Noble (2010) FLC 93-438
– Full Court discussed whether still
appropriate to refer to A v A given the
significant legislative amendments.
 Noted it would be more relevant to have

regard to the guidelines from recent Full

Court decisions.
 Did not overturn A v A.
Consideration of Variables
 In every parenting case it is necessary to
consider the following variables:
 The relevant factual history of the parties;

 The relevant factual history relating to the

parenting of the child, the subject of the
proceedings;

 The current arrangements as well as the

proposals of each party for future parenting
arrangements;
Consideration of Variables
 Practical regard to the particular child and the
particular history of that child and his or her
parents with future parenting proposals
considered in the context of that background;

 Relocation cases bring into sharp focus the

central issue of balancing the legislative
essentials in deciding what is in the child’s best
interests with the legitimate and competing
interest and proposals by parents who equally
love and wish to act in their child’s best interests
Consideration of Variables
 In determining the child’s best interest having
regard to the child’s specific factual matrix,
Orders made by the Court may mean that one
parent is left without the optimal arrangement
with the child and certainly not the
arrangement which was enjoyed between the
parent and child before the relocation occurred;

 The court is not bound by either parties’

proposal because neither proposal may be
sufficient to be in the child’s best interests
Consideration of Variables
 The court proceeds from the basis of the
competing proposals of the parents and, in
analysing these proposals, the Court may well
form a different proposal after considering what is
in the best interests within the statutory pathway.
See Health v Hemming paragraphs 99-101

 One party should not be restricted in their ability

to start a new life and if it is in the child’s best
interests to live with that particular parent then
the appropriate order should be made. See AMS v
AIF (1999) 199 CLR 160 Kirby J at para [144-145]
The Legislative Pathway
 The relevant legislation is found in Part VII –
Children of the Family Law Act 1975 (Cth) as
amended

 Part VII is broken up into a number of

divisions which in turn is divided into further
subdivisions

 Section 60B(1) outlines the objects and

Section 60B(2), the principles underlying Part
VII
The Legislative Pathway

 The First and Second Objects are for the

court to ensure that the child has the
benefit of both parents having a meaningful
involvement in the life of the child to the
extent that such involvement is in the
child’s best interests and must protect the
child from and not expose the child to any
physical abuse, psychological abuse,
neglect or family violence
The Legislative Pathway
 The Third and Fourth Objects ensure that the child
reaches their full potential by adequate and proper
parenting and by the parents fulfilling their duties and
responsibilities to the welfare, care and development
of the child

 The principles underlying these objects (except if not

in the child’s best interests) gives the child the right to
know each parent, be cared for by each parent, spend
time on a regular basis with each parent and
significant others, for the parents to agree on the
future parenting of the child and for the child to enjoy
and know their culture
The Legislative Pathway
 Section 60CA of the Act provides that in
deciding whether to make a particular
parenting order in relation to the child, a
court must regard the best interests of the
child as the paramount consideration

 Section 60CC outlines what a court must

take into consideration in determining what
is in the best interests of the child
The Legislative Pathway
 Section 60CC(2)-(2A) contains the primary
considerations. These require the court to
protect the child from physical harm,
psychological harm and the child not being
exposed to neglect, abuse or family violence
whilst evaluating the benefit to the child in
having a meaningful relationship with both of
the child’s parents

 The court is to give greater weight to protecting

the child than maintaining the parental
relationship
The Legislative Pathway
 Section 60CC(3) outlines the additional
considerations the Court considers in
determining what is in the child’s best
interests
 In relocation cases, the Court is going to have
to carefully consider:
◦ Nature of child’s relationship
◦ Practical difficulty & expense.
◦ Capacity of each parent to provide for child’s needs.
◦ Attitude of each parent to the child &
responsibilities of parenthood.
The Legislative Pathway
 Section 60CD-60CI outlines other
circumstances the court has to evaluate in
determining what is the child’s best
interests
 In considering ss60CC-60CI, the evidence

relied upon by the parties will be evaluated

and in so doing “will result in findings one
way or the other about abuse and family
violence within the meaning of those terms
as defined in S4 of the Act”. See Health &
Hemming (No2) at para 87(c)
The Legislative Pathway
 It also may be necessary to consider the
additional considerations before considering
and making findings about the primary
considerations. See Collu & Rinaldo [2010]
FamCAFC 53

 The court is under an obligation to consider,

weigh and assess the evidence adduced on
behalf of the parties touching upon each of
the relevant matters
The Legislative Pathway
 The next step, once the findings as to “abuse”
and/or “family violence” have been made, is to
see whether or not the presumption of
Parental Responsibility applies pursuant to
s61DA(1)

 If the presumption does apply then s65DAA is

triggered which requires the court to consider:
◦ The child spending equal time with the parents if it is
in the child’s best interest; and
◦ Is it reasonably practicable for the child to do so?
The Legislative Pathway
 If both of the previous considerations are
answered in the affirmative, the court has
to consider making an Order or containing a
provision for equal time

 If both of the considerations are not

answered in the affirmative, then the court
has to consider whether an Order or
containing a provision for substantial and
significant time should be made
The Legislative Pathway

 If s61DA, the presumption of shared

parental responsibility is not made, then
s65DAA is not triggered and the court
makes Orders consistent with s60CC
findings, having regard to ss60CA, and 60B

 The issue of best interests in s60DAA is

determined by the same method utilised in
s60CC
Reasonably Practicable
 The question then becomes, what is “reasonably
practicable”?

 See MRR v GR [2010] HCA 4; (2010) 240 CLR 461

 How far apart do the parents live (if relocation is
proposed, then potentially quite a distance).
 The parents’ current & future capacity to implement
an arrangement for equal or substantial & significant
time.
 The parents’ current & future capacity to
communicate & resolve difficulties that may arise.
 The impact it would have on the child.
Meaningful Relationship?
 If equal time is not proposed by the Court,
then what does “meaningful relationship”
mean?

 See McCall v Clark [2009] FamCAFC 92;

(2009) FLC 93-405 which was considered by
the Full Court. ‘Meaningful’ is not defined in
the Act.
Interpretation of the Pathway
by the Courts
 Section 69H(4) confers jurisdiction to the
Federal Circuit Court in relation to matters
arising under Part VII
 See Danner & Kelso [2012] FMCAfam 824

(10 August 2102) at paragraphs 178-181

 See Cowley & Mendoza [2010] FamCA 597

 See Ray & Sanchez [2011] FMCAfam 1395

(20 December 2011) at paragraphs 98-108
Relocation – what is
required?
 Follow the legislative pathway

 Treat relocation as you would any other

children’s matter

 Look at the specific Orders sought by each

of the parents
Relocation – what is
required?
 Determine whether any facts give rise to
whether:

 There is abuse, family violence or exposure

to same;
◦ If so, outline the reasons that Equal Shared
Parental Responsibility should not apply
◦ If there is no abuse or family violence, is there
any other reason that Equal Shared Parental
Responsibility should not apply?
Relocation – what is
required
 If Equal Shared Parental Responsibility
applies, should there be equal time having
regard to the legislative pathway – is it
reasonably practicable?
 If there is not to be equal time, should there

be significant and meaningful time and if

so, is this reasonably practicable?
 If it is not reasonably practicable, what

Order should be made to satisfy the objects

and principles of Part VII?
Practical Considerations
 Mental health of a parent:
◦ Usually in circumstances of isolation/lack of family
support.
◦ Ability to cope & impairment on parenting capacity.
◦ H & H (2005)
◦ Will require supporting evidence.
 Family Support:
◦ Often tied to parent’s mental health. ‘Homesick’
◦ Location of both parties families relevant
consideration.
◦ Children’s relationship with grandparents and
others.
Practical Considerations
 Employment/study opportunities:
◦ Financially advantageous
◦ Career path/ability to earn greater income thus
providing financial support for child.
◦ Ability to further study.
◦ Options for child’s education.
◦ Spouse employment
Practical Considerations
 Proposed distance between the parties.
 Can the relationship between the child and

the non-relocating parent withstand the

‘tyranny of distance’?
 Proposals of the parties for time

arrangements? Reasonably practicable?

 Will the relocating parent support a

meaningful relationship?
Interim Relocation
 s68B – can impose an injunctive order
restraining a parent from relocating with a
child. Can apply in final matters in limited
circumstances (see also s114 if parties were
married).
 See Morgan v Miles
 Generally a difficult application as the Court

cannot weigh up the competing proposals of

the parties with the full benefit of all of the
evidence.
Airport Watch List
Airport Watch List Orders
 Important tool for family lawyers.
 Where there is an international flight risk,

particularly to non Hague child abduction

convention countries.
 Need to file an Application – Order does not

have to be made.
 Application is provided to AFP. Child is listed

& prevented from leaving Cth of Australia.

Airport Watch List Orders
 Order will then be considered by the Court.
Usually 12-24 months.
 Many factors to be considered:

◦ Hague Convention Country?

◦ Duration & reason of travel?
◦ Connections in country of intended travel?
 Court can impose a bond.
Recovery & Location
Orders
Recovery Orders
 s67U FLA – power to make recovery order if
the Court thinks it is ‘proper’.
 Court must regard the child’s best interests

as the paramount consideration – s67V.

 Remains in force for the period specified in

the Order – s67W.

 Must consider the s60CC factors –

particularly in circumstances where there is

an that a victim of FV has fled a violent
situation.
 See Tokely & Tokely (2014) FLC 93-601
Recovery Orders
 Allows a person (usually police) to take
various steps to ‘recover’ a child –s67Q
 A person must not hinder or prevent a

person authorised under a recover order

from taking such action – s67X(2).
 A person may be authorised to stop &

search a vehicle, vessel or aircraft (s67Q(b))

& recover a child by force, if necessary
(s67Q(c)).
Recovery Orders – Practical
Considerations
 Can issue where parenting orders exist, or if
no parenting orders have been made.
 Time for matter to be heard (delay).
 Was consent for relocation given?
 Order for return of child in first instance –

non-compliance will result in a recovery

order issuing.
 Interstate recovery – AFP involvement.
Location Orders
 Made pursuant to s67J.
 Used where the location of the child (and

parent) is unknown.
 Child’s best interests are paramount – s67L.
 In force for 12 months or such longer period

as the court considers appropriate. The

person to whom it applies must provide the
information sought as soon as practicable
(s67M(5)).
 Cth information order (s67J(1)(b).
Hague Convention
(Child Abduction)
Hague Convention on Civil
Aspects of Child Abduction
 Introduced 25 October 1980.
 Seeks to protect children from harmful

effects of abduction and retention across

international boundaries.
 Provides a system of co-operation between

the Central Authority and a rapid procedure

for the return of the child to the child’s
‘habitual residence’.
 List of countries who have ratified the

convention.
Hague Convention on Civil
Aspects of Child Abduction
 In Australia, applications are made to the
Australian Central Authority (Cth Ags
Department).
 A return order is not a final determination

about parenting matters.

 Article 12 provides a ‘return order’ be made

forthwith.
 Article 16 states that a court dealing with

an abduction case is not permitted to deal

with the ‘merits of rights of custody.’
Hague Convention on Civil
Aspects of Child Abduction
 Requirements for a Return Order are strict.
 Applicant must establish under Article 3(b):

◦ The child was habitually residing in the other

State.
◦ The removal or retention of the child constituted a
breach of custody rights attributed by law in that
State.
◦ The Applicant was actually exercising those rights
at the time of the wrongful removal or detention.
Hague Convention on Civil
Aspects of Child Abduction
 Article 13 provides even if above is met,
return order will not be made if:
◦ Consent or subsequent acquiescence is proved.
◦ Grave risk that return would expose child to
physical or psychological harm or in an
‘intolerable situation’.
Hague Convention
(Child Protection)
THE CHILD PROTECTION
CONVENTION
 Australia ratified the Convention in 2003 but
it remained largely dormant until 2012
because the countries that we largely dealt
with had not ratified it.
 In 2012 the E U countries ratified it
CHILD PROTECTION
CONVENTION
 This slow ratification process strangely may
contribute to its breadth:
 ‘[p]art of the difficulty is that, as a more
traditional conflict of laws agreement, the
Convention demands a much greater level of
harmonization between divergent legal systems.
While the Convention defines a role for Central
Authorities in facilitating communications and
transmitting information between countries,
most of its rules are designed to be
implemented by judges under appropriate
national legislation’. [Estin]
CHILD PROTECTION
CONVENTION
 Cape v Cape [2013] FamCAFC 114 at 173
 There has to date been virtually no

experience in this country, or indeed to the

best of our knowledge, in any country, with
the operation of the Protection Convention,
and in particular, its provisions for the
recognition and enforcement of the orders
of one Convention country in another
CHILD PROTECTION
CONVENTION

 The 1996 Convention is concerned with civil

measures aimed at protecting children in
international contexts. As its title describes,
it regulates a broad range of matters,
including parental responsibility, parental
access and contact, public care and
protection of children, as well as matters
concerning the protection or disposal of
children’s property and procedural aspects
of cases involving children
CHILD PROTECTION
CONVENTION
Article 50 makes it clear that the
Convention does not affect the application
of the 1980 Child Abduction Convention.
 In fact the 1996 Convention reinforces

and/or complements the provisions of the

earlier Convention. It can be used to “fill in
the gaps” and can provide an alternative
mechanism to secure the prompt return of a
wrongfully removed or retained child. It
goes some way to rectifying some perceived
shortcomings in the 1980 Convention
CHILD PROTECTION
CONVENTION

 KAFALA
 A monitoring system used in some middle

east countries.
 Introduced after the 1996 Convention.
CHILD PROTECTION
CONVENTION
 The 1996 Convention uses the same terminology as the 1980
Convention which indicates the complementary nature of the two
conventions. For instance, habitual residence and wrongful removal
and retention, parental responsibility and rights of custody all carry
their international autonomous meanings in both Conventions.

 Under the 1980 Convention, a Contracting State must agree to

other parties’ accessions or else the 1980 Convention will not apply
between those states. In contrast, the 1996 Convention adopts an
“opt-out” approach, where some states accept accessions to the
1996 Convention unless they raise an objection. Australia has not,
to date, objected to an accession to the 1996 Convention by any
newly Contracting State. The 1996 Convention is in force between
Australia and 42 Contracting States and two signatory states.
CHILD PROTECTION
CONVENTION
 POINTS OF DISTINCTION BETWEEN 1980 TREATY AND 1996
TREATY
 Under the 1980 Convention, a Contracting State must agree to
other parties’ accessions or else the 1980 Convention will not
apply between those states. In contrast, the 1996 Convention
adopts an “opt-out” approach, where some states accept
accessions to the 1996 Convention unless they raise an
objection. Australia has not, to date, objected to an accession
to the 1996 Convention by any newly Contracting State. The
1996 Convention is in force between Australia and 42
Contracting States and two signatory states.
 A functioning Central Authority is a pre-requisite to accession
to the 1996 Convention although the Central Authority will not
necessary be involved in all situations to which the 1996
Convention applies.
CHILD PROTECTION
CONVENTION

 ZEGNA v ZEGNA [2015] FaMCA 340

 BUNYAN & LEWIS [No.3] [2013] FamCA 888