The family law courts have acknowledged the tension between a separated parent having the freedom to live where they want and parents living so far apart from each other that their children cannot have a meaningful relationship with each of them.
In Franklyn, the Full Court said:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders … Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the 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.
A court will only interfere with a parent’s freedom of movement, by making an order that the children be returned to their old residence after being relocated (that is, essentially a ‘coercive order’ requiring the parent to also return), if the children’s best interests would be so adversely affected that the interference is justified. The family law courts have established that there must be ‘extreme’ factors to make a coercive order.
In Oswald & Karrington, the Full Court held that the court must explore and consider alternatives to 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.
The High Court in MRR v GR emphasised that the reality of the situation of the parents and children must be considered. This means, for example, that where one party lives in Brisbane and the other in Melbourne, the court must practically assess whether these circumstances permit a child to spend equal time or substantive and significant time with each parent, even if this living situation has been caused by a party’s unilateral relocation.
In Sampson, the Full Court said
where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move.
Unfortunately for those parents left behind, the delayed family court system does assist the relocating parties’ case, as they are given the opportunity to establish themselves in their new location.
In Parks & Farmer, the Full Court said that, while the Court does not condone unilateral relocations, such actions are only one of the factors that are relevant to determine a child’s best interests on an interim basis. While a unilateral relocation is a relevant factor, it does not necessarily tip the balance of the child’s best interests in the favour of the parent left behind.