One of the most difficult interim applications the family courts are required to deal with are interim relocation of children cases, usually where one parent has unilaterally relocated the children without consent of the other parent and seeks forgiveness for the relocation, rather than permission.
In our previous blog we looked at how a court determines a relocation case, at a final hearing.
We will now take a look at how the court determines interim relocation of children cases, i.e. where a parent has relocated with the children unilaterally without consent of the other parent and seeks to maintain their living arrangements rather than be required to return and wait for a Trial (final hearing) for determination of the application.
Case Study – Interim Relocation of children – serious family violence allegations untested; Father not an appropriate primary carer; emotional impact on mother if required to return balanced against child’s right to maintain meaningful relationship
In the recent case of Sterry & Sterry [2017] FCCA 2255 the court considered an interim relocation of children case. The facts of that case are as follows:
The application before the court related to child X, aged 4 years old. The parties had been in a relationship for a number of years and since 2011, they had been living in New South Wales. The parties separated in May 2017 and the Mother moved to South Australia with child X, without the Father’s consent. The Mother had grown up in South Australia and sought to remain living there with child X, where she said she would have support from her family.
The Mother alleged that the father was physically, sexually and emotionally abusive towards her during the relationship and that relocating to South Australia was the only safe option for her and X. These allegations were denied by the Father.
The relationship had been deteriorating for some months to the point that the parties had exchanged texts and emails where the Mother sought to ‘get away’ and the father made it clear that X should stay.
The Father was sufficiently concerned that he instructed lawyers to write to the mother on 2 June 2017, confirming he did not consent to the mother relocating with child X from the New South Wales region. The Mother left with X and relocated to South Australia on 3 June 2017.
The court referred to the allegations of the Mother being very serious. There had been no charges laid and the court was unaware whether the police were still investigating the matter.
The court indicated that the father’s evidence which was put forward at the interim hearing may well cast doubt on the mother’s allegations e.g. showing he wasn’t present at the home at the time of the alleged assault.
However, the evidence of both parties was untested (the evidence is tested through cross-examination at a final hearing) and the court could not ignore the serious allegations of the mother.
The court balanced the competing factors in determining X’s best interests, including the serious allegations of the mother, the assessment that the father was not an appropriate primary caregiver for X at the time, the impact on X’s capacity to maintain a meaningful relationship with the Father and family in the short term if X was permitted to remain in South Australia and the emotional impact on the mother and therefore X, if the child was required to return to New South Wales.
Having regard to these factors, the court made interim orders which permitted the mother to remain living in South Australia with X.
Case Study 2 – Interim Relocation of Children – family violence/mental health allegations not particularised; evidence was that both parties had capacity to care for child; Evidence of lack of financial support if required to return not made out; Young child’s best interests required regular and frequent time; Negative consequences were greater of allowing unilateral relocation.
In the case of Mannon & Bainer [2021] FCCA 856, the Mother unilaterally relocated the child X’s resident from Townsville to Melbourne. X was thirteen months of age at the time the Mother unilaterally relocated.
The Father sought a return of X to Townsville with or without his Mother and in circumstances where the Mother did not return, he sought an order that X live with him.
The Mother sought to remain in Melbourne and her case was that the child was at an unacceptable risk of harm in the Father’s care, due to mental health issues which led him, on her case, to regularly suggest that she would commit suicide. She sought an order that the Father undertake a psychiatric assessment and that time on an interim basis be supervised pending that assessment. There was no suggestion on its face that the X would be at risk of harm in the Father’s care because of family violence.
The Mother’s case was that her mental health would be impacted if she were required to return to Townsville to care for X and that she requires family support in Melbourne, financial and emotional.
In the proceedings, both parties gave evidence that they moved from Melbourne to Townsville during the Covid-19 Pandemic for the Father’s work, and that it was in everybody’s best interests to move from Melbourne to Townsville, in circumstances where the Father’s family were in Townsville and he was brought up there.
The Mother’s family lived in an overseas country including her mother and sister and she had aunts and an uncle and grandparents living in Melbourne.
The Mother raised allegations of family violence and alleged she was forced to flee Townsville as she was scared. The family violence allegations were all general in nature and were denied by the Father. Most facts were contested. The Court did not give those allegations probative value given the nature of the allegations and lack of particularity or evidence. The Court chose to place little weight on the Intervention Order made in Melbourne as it was made without being served on the Father. The Court nonetheless accepted that the relationship on both party’s cases was volatile, and that arguments occurred in front of the child.
The Court considered the presumption of parental responsibility was rebutted by the mutual assertions of family violence, but noted that both parties sought equal shared parental responsibility, meaning, in the Court’s view irrespective of the violence that has occurred, each of them considered that it was in the child’s best interests for them to have equal shared parental responsibility in relation to child X.
Given that both parties sought such an order on a final basis, His Honour thought it appropriate to make that order on an interim basis too.
In relation to care of X, the Father sought regular frequent time which the Court said was appropriate and child focused at X’s age. The Mother indicated when asked that the time sought by the Father, as a general proposition, was appropriate given X’s age and in X’s best interests.
The Court was not satisfied that there was an unacceptable risk of harm to X by reason of mental illness of the Father as there was no evidence of harm to the child by the Father, no evidence of threats of harm to the child. Rather, the evidence of the Mother was that the Father was a hands on parent and she called for his support even after separation.
There was an acknowledged diagnosis of the Mother with post partum anxiety after the birth of X and there was a lack of evidence about the Mother’s ongoing treatment with a psychologist.
Regardless, both parents were complimentary of the other parent’s capacity to parent, despite the allegations made by the Mother about the Father. Both parents acknowledged that the Father financially provided for the Mother.
The Mother argued that she could not afford to live in Townsville on her own. The Court held that proposition was not made out on the evidence. The Court noted that the Mother’s case was that she was receiving financial support from her Mother whilst living in Townsville nor was there any evidence to suggest that the Father’s financial support and her Mother’s financial support would not continue if she returned to Townsville. The Court noted that whilst the Mother deposed to free accommodation and financial support from her grandmother in Melbourne, there was no evidence of the Mother receiving that financial/emotional support in Melbourne, by way of affidavits of her family nor was there any specificity as to the financial support she received.
The Mother’s assertion that she would be bereft of financial or emotional support from her family and the Father in Townsville, was therefore rejected.
The Court placed weight in this case on the child’s age and the fact that if X remained in Melbourne, his relationship with his father would be negatively impacted given the difficulty of X having regular frequent time with his Father if they lived in different states. The Court said that returning X to an arrangement that he was familiar with, being cared for by both parents and with not long periods of time between those experiences, was in X’s best interests.
The Court considered the case of Morgan and Miles. In response to issues raised by the Mother about the fact that the parties had only lived in Townsville for six months, the Court noted it was not about the physical location of the child or how settled the parties were, what was relevant was X’s relationships and his entitlement to have a meaningful relationship with both parents, and that entitlement was being met before the Move.
The Court ultimately made orders that the Mother return the residence of X to Townsville within 21 days with the child to spend 2 hours each Tuesday and Friday, and from 9am to 6pm each Sunday, with the Father. In the event the Mother did not return child X to Townsville in accordance with the orders, the Court gave the Father liberty to apply for further orders.
Case Study 3 – Interim Relocation of Children – failure of trial judge to engage with evidence as to the child’s best interests; Court must carefully consider evidence of family violence; coercive orders require careful consideration.
Stringer & Nissen (No. 2) [2019] FamCAFC 185 involved an appeal of an order made that the Mother return to Town A after having unilaterally relocated to Sydney with the child.
The child was born in 2014. The parties separated when the child was six months old. The Mother unilaterally relocated with the child (5) to Sydney, from Town A where the parties had lived for most of the child’s life.
Prior to the unilateral relocation, the child X spent time with the father from 4:00pm each Tues to Wed and each alt weekend from Friday to Sunday pursuant to a Parenting Plan made in 2015.
The mother found that her support network and capacity to support herself in Town A was constrained. When her brother offered her rent-free accommodation, she moved to Sydney. She did not inform the father of this move, claiming he had been violent and being fearful of his response. At the time she moved she was living in rented accommodation in Town A, she was receiving Centrelink benefits and was not receiving child support payments. On 13 March 2019, the parties made arrangements for the child to spend time with the father until 21 March 2019. At the end of that time, the father refused to return the child thereafter.
The mother commenced proceedings seeking orders for the child’s return to her. The Mother alleged that she had unilaterally relocated due to family violence and the Father’s alcohol abuse. The Mother sought orders which enabled the child to maintain a relationship with the Father pending a trial.
The father sought for their son to live with the mother in Town A or, if she would not return, live with him in Town A. The Judge found it was in the child’s best interests to live in Town A and to live with the mother and ordered that their son live with the mother there or, if she would not return, live with the father.
The Mother appealed.
The primary Judge looked at the significance of the mother’s evidence that she did not tell the father she was going for fear of him, the fact that the child had been in his mother’s primary care since separation, the effect the orders might have on the child if that separation, already some months, was to continue until there was a final hearing easily more than a year away.
The appeal court criticised the primary judge that he did not consider the father’s unilateral decision not to return the child after spending time with him was as worthy of denunciation as apparently the mother’s unilateral decision to relocate without telling the father, that it was unequal treatment of the parties and ‘perplexing’.
In relation to the family violence allegations, the appeal court noted that the allegations of family violence together with the Father’s alleged alcohol abuse were fundamental matters integral to the Mother’s case that there was a risk to the child of being exposed to family violence, which were ignored by the primary judge.
Summary of findings:
- The Full Court agreed with the primary judge’s finding that it was in the child’s best interests to live with the mother as she was his primary caregiver and had been throughout the child’s entire life.
- There were insufficient reasons supporting the finding that the child should live in Town A.
- Relevant factors the court considered in making these findings were that there was evidence that the child may be exposed to violence in the father’s care, that the mother was struggling to support herself in Town A and that the mother would benefit from her brother’s support and that the mother would facilitate the child’s relationship with the father.
- The primary judge made a coercive order which requires significant and careful consideration (Sampson & Hartnett [2007] FamCA 1365😉
- The primary judge’s reasons showed that he understood that the Mother whilst living in Town A was renting, in receipt of centrelink benefits and not receiving any child support from the Father who was employed full time.
- There was no evidence before the primary judge that the Father would/could offer the Mother financial support in Town A to obtain accommodation and to live from day to day.
- The primary judge’s comment that the Mother could live with the maternal grandmother in Town A was not appropriate given the evidence of their differing personalities and there was insufficient evidence to support such an inference being drawn.
- The primary judge improperly considered the principles applying to a relocation order and evidence of family violence, gave undue weight to the Mother’s unilateral relocation without adequately considering family violence and the effect of a separation of a child from his primary carer.
- The primary judge did not carefully consider the facts of the case going towards what was in the child’s best interests in determining where the child should live.
The appeal was allowed and the matter was remitted for rehearing. Interim Orders were made that the Father deliver the child to the Mother on 27 October 2019, that the child live with the Mother, that the Mother have sole parental responsibility for the child and that the child spend time with the Father as agreed between the parties.
Case Study 4: Young child; reports of serious family violence; no greater risk to the child if he was returned to his original location; order for supervised time
In the case of Jacobsen & Mohr [2017] FCCA 642, the court was faced with similar circumstances and took the opposite approach.
In that case, the Mother had unilaterally relocated from Adelaide to Melbourne with her 11 month old child and made contemporaneous reports to the police and her counsellor of serious allegations against the father of abuse and family violence.
The court was faced again with the difficult task, in similar circumstances to the case of Sterry, of weighing up the child’s right to a safe environment free from risk of potential family violence, as opposed to the potential benefit of the child having a meaningful relationship with both of his parents.
It was held by the court in Jacobsen & Mohr that whilst the allegations should be taken seriously, the child would not be at any greater risk of exposure to family violence if he was living in Adelaide. The Mother was therefore ordered to return to Adelaide with the child and orders were made for the Father to spend time with the child supervised at a contact centre.
How are interim relocation of children applications determined?
In any relocation case, the children’s best interests are to be weighed and balanced with the right of the proposed relocating parent’s right to freedom of movement.
However, interim relocation of children cases, where one parent has relocated without consent of the other parent, are the most difficult cases for the Court to determine.
This is because interim relocation of children cases are generally marred with serious allegations of abuse and family violence, but the court cannot make findings of fact in relation to these allegations and fully assess the evidence that will enable the court to finally determine the child’s best interests, until a Final Hearing.
There is a tug of war of competing factors to consider in such a case.
The Courts are cautious about permitting an interim relocation of children, before a Final Hearing, where such relocation will impact on the relationship between the children and the left behind parent, especially where one parent seeks forgiveness rather than permission.
However, the Court must also proceed with caution when making interim orders for a parent to return to a location if they have unilaterally relocated. The Court must consider the allegations of family violence, the effect of a coercive order requiring that parent to return, and all factors relevant to the children’s best interests.
In the leading interim relocation of children case, Morgan & Miles, it was held that arrangements which alter the child’s present stability should not be determined at an abridged interim hearing, but at a Final hearing. In this case the Court ordered the Mother to return the child to the previous location, until the issue of the proposed relocation could be considered at a Final Hearing.
Generally speaking, a party should not be permitted to ‘move the goal posts’ and relocate with a child at an interim hearing and until all of the evidence can be tested as to its truth at a Final Hearing/Trial.
On the other side of the coin, in circumstances where the court cannot determine the truth or otherwise of allegations made by a party at an interim hearing and until a Final Hearing, all allegations, properly particularised, must be taken seriously by the court.
From the above cases, the general factors/principles that will play heavily on the Judge’s mind in any interim unilateral relocation case, when determining what orders are in the children’s best interests, are as follows:
- The Court must consider the child’s position prior to the relocation and whether those arrangements are in the child’s best interests. Arrangements which disrupt a child’s stability should not generally be determined at an abridged interim hearing: Morgan & Miles;
- The Court should proceed with caution when making coercive orders (Sampson & Hartnett) and consider any allegations of family violence and the child’s best interests: Stringer & Nissen;
- The willingness and ability of the left behind parent to financially support the other parent if they were to return the previous location they unilaterally relocated from including in respect to accommodation and their day to day needs: Stringer & Nissen;
- The circumstances that the unilaterally relocating parent would in reality find themselves in if required to return with the child. The impact on the parent’s financial and emotional capacity if the parent is required to return: Mannon & Bainor.
- The suitability of the other parent as primary carer of the unilaterally relocating parent fails to return – the ability of that parent to provide for the child’s physical, emotional and intellectual needs: Stringer & Nissen.
- The effect of separation of a child from his/her primary carer (if the unilaterally relocating parent does not return): Stringer & Nissen;
- Evidence that the unilaterally relocating parent is receiving and will continue to receive financial support in the location they have moved with the child to: Mannon & Bainor.
- The quality and particularity of the evidence concerning any allegations of family violence, mental health issues, and issues affecting the capacity of a parent: Mannon & Bainor.
- The uncontested facts with respect to issues such as the child’s previous care arrangements, the capacity of the parents, the financial support provided to a parent in the past, and inferences that can be drawn by those uncontested facts: Mannon & Bainor.
The above case studies demonstrate that the courts genuinely struggle to make orders on an interim basis which provide for a child to be returned to their former location when a parent relocates with a child without consent of the other parent, in circumstances where there are serious allegations of abuse and family violence.
In these cases, the court will have regard to the impact of a disruption to the child’s new living arrangements and where there are serious allegations made against the party seeking the return of the child, this may, depending on the circumstances of the case and the quality of the evidence, be sufficient so as to deny an interim application by a parent seeking the return of the children to their former living arrangements, especially where the left behind parent is unable a suitable alternative as primary carer if the other parent fails to return and/or fails to offer to financially support the parent and children upon their return to the original location.
In the case of Sterry, the Mother’s serious allegations of abuse, in conjunction with the mother’s role as primary carer for X during the relationship, and the likely impact on her if the father’s application for X to return was successful, outweighed competing factors such as the disruption to the relationship between X and the Father and were sufficient for the court to adopt a conservative approach and permit the mother to remain living with X in South Australia until a final hearing.
Similarly in the case of Stringer & Nissen, we are reminded that the Court must take family violence allegations seriously, all factors affecting the child’s best interests should be considered and that coercive orders should be given significant and careful consideration.
In Mannon & Bainor, the Court emphasised that where there is a young child and there is a lack of quality evidence in support of allegations made about risk, the Court will not permit a parent to move the goal posts on an interim basis and the Court will place weight on the negative impact on the child’s relationship with the Father if the unilateral relocation were allowed.
These cases demonstrate the difficult task that is faced by the courts when dealing with interim relocation of children matters. Similar facts can produce entirely different results.
Get prompt legal advice
The Case study of Sterry exemplifies why it is very important that you seek prompt legal advice if you are a party to an interim relocation of children case, whether you are the parent seeking to relocate or the parent opposing the relocation.
If you are the parent opposing the relocation, and you get wind your ex partner intends to relocate the children without your consent, you should immediately instruct an expert child custody lawyer and seek urgent orders from the court to prevent the other party from relocating with the children, as the prospects of success of such an interim application are much higher than an application requiring the return of the parent who unilaterally relocated the children without your consent.
Contact us today to book a reduced rate confidential initial consultation with one of our family law experts to receive advice about your specific circumstances. We will guide you through the process and prepare a strategic plan of action that maximises the prospects of success of your application to relocate/prevent relocation of your children.
