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Relocation breach – mother not forced to return

By June 27, 2019February 23rd, 2024No Comments

A recent case heard in the family court shows what might happen in a matter where a parent has breached orders to relocate without consent when they have equal shared parental responsibility over a child. In this case, given the absence of any parenting concerns and the fact the couple’s child can still practicably spend substantial time with each parent, the court declined to force the mother to return or impose penalties.

The case of Baker & Warwick recently heard in the Family Court at Newcastle is a relatively amicable parenting dispute involving a four year old girl, where the parents had equal shared parental responsibility and there were no concerns about either parent’s care of the child. Various consent orders about equal shared parental responsibility and parenting arrangements had been entered into over the past few years and the litigation had narrowed down to a dispute over the exact time that the child spent with each parent.

At some stage however, the mother decided to move with the daughter, from the regional NSW town where the parents had moved on marriage, back to the southern suburbs of Sydney. The mother had moved because she was “tired of commuting” to Sydney for work and had become “disaffected by the lack of her friends and family” in the regional town. The father now objected to this move and was attempting to force the mother to return to the regional NSW town by way of injunction.

When separated parents hold equal shared parental responsibility for their children, something such as relocation of the child’s residence falls into the category of a “major long term issue”. Decisions relating to major long term issues are meant to be made jointly by the parents if they have equal shared parental responsibility. So, the court accepted the mother’s move was a breach of the parenting orders.

The court noted that “the father regards the mother’s decision to relocate contrary to his wishes as a demonstration of her poor attitude to the responsibilities of parenthood”. But the court also found the mother had sufficiently established a practical way for the father to “overcome the tyranny of distance and to lessen the travel burden” by having put forth a proposal which consolidated the father’s time, so that instead of two separate weekly visits with his daughter, he could now have one consecutive fortnightly visit.

Relocation cases are usually very complex and involve the courts considering a wide range of factors under the Family Law Act 1975 to decide if a relocation is in a child’s best interests. Many cases fail because parties haven’t shown that they’ve put enough thought and planning into a relocation. Courts want to know that a parent who wishes to relocate has considered the parent being left behind and the likely effect on them and their relationship with the child. If a relocating parent can show how they will facilitate and promote contact with the other parent, and present a good picture of the left-behind parent to the child, that is usually well regarded by the courts. Here, the mother was able to successfully show that the father could still spend the same amount of time with his daughter, albeit in a different routine, despite the unauthorised relocation. Due to this, the Court did not order the mother to return to the regional town, allowing her to stay in Sydney.

To read about how courts generally decide relocation cases, you may also like to read our blog on building your case for relocation.

You can read the case here.

Do you need assistance with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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