One of the most difficult interim applications the family courts are required to deal with are interim relocation of children cases, where one parent has unilaterally relocated the children without consent of the other parent.
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
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.
How are interim relocation of children applications determined?
Interim relocation of children cases, where one parent has relocated without consent of the other parent, are the most difficult cases that the family courts are required 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.
The courts are necessarily cautious about permitting an interim relocation of children for this reason.
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.
The case study of Sterry demonstrates 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 be sufficient to deny an interim application by a parent seeking the return of the children to their former living arrangements.
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.
In contrast, 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.
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.
