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Australian Family Law Court Decisions about Relocation: Parents’ Experiences and Some Implications for Law and Policy

Published online by Cambridge University Press:  24 January 2025

Juliet Behrens  and
Bruce Smyth
Juliet Behrens
Affiliation:
Australian National University College of Law and at Dobinson Davey Clifford Simpson Family Law Specialists
Bruce Smyth
Affiliation:
Australian Demographic and Social Research Institute at the Australian National University
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Extract

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. Unlike in the United Kingdom where restrictions even on international relocations appear from analyses of the reported case law to be relatively rare, decisions in Australia restraining relocations are quite common. There has, as yet, been no Australian legislative reform specifically addressing decision-making on the issue of relocation. 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‘).

Type
Research Article
Information
Federal Law Review , Volume 38 , Issue 1 , March 2010 , pp. 1 - 20
Copyright
Copyright © 2010 The Australian National University

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Footnotes

*

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.

References

1 Patrick, Parkinson, ‘Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation’ (2008) 36 Federal Law Review 145Google Scholar; 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 107Google Scholar; Mary, Hayes, ‘Relocation Cases: Is the Court of Appeal Applying the Correct Principles?’ (2006) 18 Child and Family Law Quarterly 351Google Scholar.

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 35Google Scholar. Patricia Easteal and Kate Harkins found that from 30 relocation decisions made after July 2006, half allowed relocation with children: Patricia, 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, 263Google Scholar.

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.

8 See Briony, Horsfall and Rae, Kaspiew, ‘Relocation in Separated and Non-separated Families: Equivocal Evidence from the Social Science Literature’ (2010) 24 Australian Journal of Family Law (forthcoming)Google Scholar.

9 Colin, Robson, Real World Research: A Resource for Social Scientists and Practitioner-Researchers (2nd ed, 2002) 163Google Scholar.

10 The quantitative data are separately reported in Behrens, Smyth and Kaspiew, above n 5.

11 There are many practical and ethical challenges in interviewing and reporting on ex-couple dyads. As an exploratory study, we opted for the simplest way forward.

12 This was for ethical reasons — participants had been assured that their accounts would not be compared with those of the other parent.

13 Initially we did not plan to access judgments but, as explained above, we added this quantitative component during the project. As parents had been told their interviews would not be compared with any other data we were unable, for ethical reasons, to identify and compare their accounts with judgments in their cases.

14 John, Lofland and Lyn, Lofland, Analyzing Social Settings: A Guide to Qualitative Observation and Analysis (3rd ed, 1995) 192Google Scholar.

15 Kathy, Charmaz, ‘The Grounded Theory Method: An Explication and Interpretation’ in Robert, Emerson (ed), Contemporary Field Research: A Collection of Readings (1983) 109Google Scholar.

16 We used the software, HyperRESEARCH™, to store and manipulate our codes, and to generate reports for key codes and themes. This package allows different pieces of information (ie, words, phrases, sentences, paragraphs) to be tagged for different codes so that they can be retrieved easily and systematically. Nonetheless, the research team members still had to immerse themselves in the detail of participants’ stories to identify key ideas and themes among the data, and to make higher-level connections and abstractions.

17 This theme is explored in more detail in Juliet, Behrens, Bruce, Smyth and Rae, Kaspiew, ‘Australian Family Law Court Decisions on Relocation: Dynamics in Parents’ Relationships Across Time’ (2009) 23 Australian Journal of Family Law 222Google Scholar.

18 Carol Smart et al, Residence and Contact Disputes in Court (Volume 1) (2003) Department for Constitutional Affairs, DCA Research Series 6/03; Carol Smart et al, Residence and Contact Disputes in Court (Volume 2) (2005) Department for Constitutional Affairs, DCA Research Series 4/05.

19 See Rae, Kaspiew, ‘Violence in Contested Children's Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112Google Scholar; Lawrie Moloney et al, Allegations of Family Violence and Child Abuse in Family Law Children's Proceedings: A Pre-Reform Exploratory Study (2007) Australian Institute of Family Studies, Research Report No 15.

20 A wide definition of child abuse was applied, including physical abuse, emotional and psychological abuse and neglect.

21 Jan, Pryor and Bryan, Rodgers, Children in Changing Families: Life After Parental Separation (2001)Google Scholar; E, Mark Cummings and Patrick, Davies, Children and Marital Conflict: The Impact of Family Dispute and Resolution (1994)Google Scholar.

22 Jennifer, McIntosh and Richard, Chisholm, ‘Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation’ (2008) 14 Journal of Family Studies 37Google Scholar.

23 Family Law Council, above n 6, 5.

24 We are grateful to Nicolette Norris for this point: personal communication with Juliet Behrens, October 2009.

25 To protect the identity of participants and their significant others, names have been changed, as have some non-material details.

26 Family Law Council, above n 6, 68.

27 AMS v AIF (1999) 199 CLR 160.

28 A v A (2000) 26 Fam LR 382.

29 Given this, an interesting question is whether ‘relocation disputes’ have become more common as arrangements and court orders for ‘shared care', or men pressing for such care, have become more common.

30 Family Law Council, above n 6, 68.