In relocation cases, like all other cases, the paramount consideration when the Court is considering what parenting orders to make is what orders are in the child’s best interests. As part and parcel with a relocation case, the court has the power to make coercive relocation orders.
What is a coercive relocation order?
For many years the family law courts have restrained the movement of a primary care parent and this is very clearly within the jurisdiction of the court, if such an order is in the children’s best interests.
The Full Court has in recent years engaged with the question as to whether or not the Court has the power to go further – that is to force a parent to relocate.
Coercive relocation orders, sometimes referred to as ‘coercive orders’, are orders directly requiring a parent to relocate to live in a particular location, with or without a child, to parent the child and facilitate the child’s relationship with the other parent.
This is different to orders that do not directly require a parent to move, but do so implicitly, for example, where a parent is ordered to effect relocation of the child, for example that the child reside in Sydney. It is implied that the parent will move with the child in order to parent the child in the new location (Sydney), but the parent is not expressly required by the order to move.
There is significant differing opinion however as to the definition of a coercive order in the family law courts.
Some Judges believe an order requiring relocation of the child, is still a coercive order, as the practical reality of the latter order is that it still requires the parent to relocate closer to the child to comply with the orders with respect to the time that the child spends with each of the parents, and in that respect, it is still seen by many as a coercive relocation order.
Some Judges are of the view that any order prohibiting relocation of the child and/or the parent, is a coercive relocation order.
Some Judges are of the view that a coercive order is only an order which requires a parent to move to a new location.
Some Judges are of the view that a ‘return order’ where the return of a carer parent is sought is requiring them to move to somewhere ‘new’ and is therefore coercive.
The guideline set out by the Full Court in the case of Sampson is that where the parent says they will leave without the child if they are denied the opportunity to relocate the child, an order prohibiting the parent’s relocation, explicitly or otherwise, is a coercive relocation order.
Whatever the ambit, current case law indicates that the scope of coercive orders will always include orders requiring a parent to move to a new location to parent.
Does the Court have the power to make coercive relocation orders?
There has been ample discussion in cases and arguments advanced by parties and practitioners that where a coercive order is made it is contrary to a person’s right to freedom of movement under section 92 of the Constitution.
In cases involving a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable it frames orders which are congruent with a party’s rights under section 92 of the Constitution.
However, the Court does have power to make a coercive order controlling where a parent lives, where it is in the best interests of the child to do so.
In Oswald & Karrington as well as Sampson & Hartnett, the court addressed this contentious issue and reiterated the statements made in the High Court Authority of U v U:
“whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
However, the Courts have been clear that whilst the power to make a coercive relocation order exists, it is at the extreme end of the discretionary range and there should exist rare or extreme factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of the children, and in the absence of alternate options: Oswald & Karrington; Sampson v Hartnett.
Case Examples: Oswald & Karrington (2016) 55 Fam LR 344
In Oswald & Karrington, the Mother moved 285 kms away from the Father with the children after separation.
The final parenting orders included a coercive order for her to move within 80 km of the Father.
The Appeal Court held that the Trial Judge made erroneous findings that the Mother would receive the same emotional support should she be ordered to relocate back to the Father’s town and failed to consider the risk factors for the children should the mother be required to move back to the Father’s town, including a relapse and abuse of drugs.
In overturning the coercive relocation order, the Court noted that:
- The court’s power to make a coercive relocation order should be exercised only in rare and extreme circumstances, namely, for a parent to perform their role as primary carer.
- The Court must explore and consider alternatives available before making a coercive order, restricting freedom of movement.
This is particularly where the coercive order will require a party to relocate contrary to that party’s proposal and involve a primary caregiver undertaking their role in a place not of their choosing.
Case Examples: Sampson & Hartnett (No. 10) [2007] FamCA 1365
In Sampson & Hartnett, the Mother was living in Geelong and the Father in Melbourne post separation. The Mother’s attitude to facilitating the child’s relationship with the Father was not ideal.
The Court ordered at the Trial that the child’s residence be established in Sydney and that the child spend regular time with both parents. There was no specific order for the Mother to move from Geelong to Sydney but the orders with respect to the child’s living arrangements thereafter in effect coerced her to move.
At the Trial the Judge noted the Mother’s opposition to moving and acknowledged that it impinged on the Mother’s right to live where she chose, but noted that her right had to give way to the children’s best interests.
The Full Court on appeal noted that:
- Coercive orders should only be made in rare and exceptional circumstances, requiring a parent to relocate so as to continue to be the primary carer of their children.
- The Court must consider the impact, including the practical and financial impact on the Mother who has been the children’s primary carer, of being effectively compelled as a result of parenting orders providing for time with the Father, to move with the children contrary to her proposal.
The Full Court held that the Trial judge fell into error by not considering the practicality of the orders including the financial capacity of the Mother to move to Sydney.
The Full court ultimately set aside the coercive order requiring the mother and child to relocate and the matter was remitted for a rehearing before another judge.
Case Examples: Nihal & Nihal [2024] FedCFamC2F 96
In Nihal & Nihal, at a Final Hearing, a coercive order was made for the mother to return to Sydney from Melbourne with the child.
The Court determined that rare and extreme circumstances were established to warrant the making of such order.
In this case, X had been in the primary care of the Mother since separation, at which time the child was only a few months old and they lived in Melbourne since 2020.
The Father sought orders that X live with him in Sydney and spend time with the Mother on alternate weekends, or alternatively, that X return to live in Sydney with the Mother, should she choose to accompany him.
The Mother sought orders to remain in Melbourne and have sole parental responsibility for X and that he spend time with the Father each alternate weekend.
The Mother alleged significant family violence by the Father, which he conceded but also alleged family violence by the Mother. The Father raised concerns about the X remaining in Melbourne living with the Mother, contending she had mental health issues, lacked secure accommodation (she was living in temporary accommodation with two other women) and was financially insecure.
Interim orders were in place for supervised time following a Child Impact report, and after preparation of a family report, interim orders were made for block holiday periods with the Father.
At the Final hearing, the Court determined that it was in X’s best interests to live with the Mother and noted that a relocation by the Father to Melbourne was not possible as he had remarried.
The Court noted:
- It has the power to make coercive orders as proposed by the Father that if X does not live with him, that he be relocated to Sydney, in order to maintain the child’s relationship with the Father.
- the Mother noted in her case outline that whilst she had fears of the Father, if the court were to order the child to relocate to Sydney, she would do so;
- A parent is entitled to live where they choose and does not need to demonstrate compelling reasons to live where they propose to live: AMS v AIF; Adamson;
- However, the best interests of the child are paramount and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration: U v U;
- There is a tension between parents freed of movement especially where an order is proposed not just to restrain one parents move further away, but to compel the parent who ahs already moved away to return and establish a new residence closer to the other parent.
- The children’s best interests are the paramount but not sole determinant of parenting orders. Parents enjoy as much freedom to live where they please as is compatible with their obligations for their children. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests: Franklyn.
The court noted that whilst an order compelling the Mother to move to Sydney may have negative impacts on her it was in X’s best interests because the Mother would receive more support from the Father, there would be more opportunities for X to pursue extra-curricular activities because of the Father’s income and resources, the Father would have the ability to have involvement in X’s day to day care including attendance at school and the geographical distance between the parents would not impact on X’s relationship with the Father.
Ultimately, the Court made orders that the child X (6) be relocated to live in Sydney, that the parents were thereafter restrained from relocating X’s primary residence from Sydney and that the child live with the Mother and spend time with the Father from Saturday morning to Sunday afternoon each week and for half of each school holiday period. The orders therefore impliedly required the Mother to return with the child to Sydney to facilitate compliance with the order.
Summary of the law in relation to coercive relocation cases
The law in relation to coercive relocation cases and the Court’s power to make such an order that a parent relocate or restraining a parent from doing so is as follows:
- The power to place a restraint upon a child exists under s65D and s68B FLA;
- An order requiring a parent to live in a particular place (a coercive order) is not a parenting order as defined under s64B;
- The Court has power to make a coercive order to restrain a parent from relocation or to directly require relocation under section 65D, which states that the court may make such parenting orders as it thinks proper;
- While freedom of movement is a constitutional right for adults in Australia, this right does not surpass that of the children. I.e. the right to freedom of movement is subordinate to the best interests of the children: U v U
- The proper exercise of that power is at the extreme end of the discretionary range and there should exist rare or extreme factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of the children: Oswald & Karrington; Sampson v Hartnett;
- In the absence of rare or extreme circumstances a court should not exercise its discretion to make a coercive relocation order without some particular justification.
- There is an imperative for the Court to explore and consider alternatives to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parent’s choosing.
The main point of concern regarding coercive relocation orders is the restraint it provides on a parent (usually mothers) on their freedom of movement.
Whilst a parent’s right of freedom of movement always defers to the express paramount consideration, the best interests of the child, given the recent amendments to the Family Law Act made on 6 May 2024, there is now a greater emphasis on the safety of the children and the parents, and other objects have been removed and references in the legislation to a child having the opportunity of having a meaningful relationship with both parents.
It remains to be seen as to whether these changes to the legislation, with a further emphasis on safety, will result in the Courts making less coercive relocation orders.
Contact us to discuss coercive relocation orders
If you are considering relocating with your child or you have relocated with your child and you are concerned the other parent may seek a return order, contact us to discuss a plan and a strategy tailored to your individual circumstances. In relocation cases, having a clear strategy that is implemented from the beginning of the matter is essential to enhance the prospects of success of your application.
