Case study: Unilateral relocation amid family violence claims

Paper family cut out with scissors separating family

There are two sides to every unilateral relocation story. Sometimes a parent has unilaterally relocated a child or children far away without the consent of the other parent. The left-behind parent then finds themselves having to go to court to seek orders that the child be returned. Or a relocation matter might involve a parent who wants to move somewhere with the children, but their co-parent won’t permit it. In such a case, the parent seeking to move can make a relocation application. Either way, relocation matters can be very traumatic.

When a child is permitted to be relocated by a court, this is often devastating for the left-behind parent, who faces the potential loss of a close relationship with their child due to the tyranny of distance. Naturally, this also potentially impacts the child’s right to have a meaningful relationship with the left-behind parent. As such, determination of relocation matters is a very delicate and difficult task for the family courts. 

Even when a child has been allowed to be relocated, the courts will make orders that attempt to ensure the left-behind parent is able to maintain a meaningful relationship with their child, with regular scheduled time and telephone/video communication.

Whether a child has already been relocated and a parent is attempting to have the child returned home, or they discover their co-parent is intending to relocate the child and wish to stop this, time is of the essence in taking action. This is because the longer a child is settled in a new place of residence, the less the courts may wish to disturb that stability owing to the potential effect of further change for the child. As such, it’s important for the non-relocating parent to obtain family law advice and seek urgent orders in the courts.

Instead of undertaking a unilateral relocation of a child, with the risk that a left-behind parent will take court action for the child’s return, a parent wishing to relocate with their child may make a relocation application through the courts.

Why do parents wish to relocate?

Australian Institute of Family Studies (AIFS) research on family court judgments has revealed that parents mainly wished to relocate to be closer to family support, to be with a new partner, or for career reasons.

However, reasons were typically complex and included wishing to escape conflict with a co-parent. The research found that around 80% of relationships in relocation matters could be described as high-conflict, and that allegations of violence were raised in around 70% of cases.

What kind of relocation cases tend to succeed?

The AIFS research showed that relocation applications were generally approved in slightly more than half of all cases (57% approved compared to 43% rejected).

Drilling down into reasons why parents wished to relocate reveals success rates of applications differ depending on the reason for desiring to move.

Of parents seeking to return to their birthplace, three quarters were successful in their relocation application. By contrast, parents wishing to relocate because of a new partner were only successful in around half of cases involving this reason.

Other interesting findings include the fact that the more a non-custodial parent was involved with their children in shared care arrangements, the less likely a relocation application was to be successful.

And it’s worth noting that the credibility of evidence given by parents is also a factor in the ultimate success of a case. In the research, it was found a judge’s negative assessment of a parent’s credibility was strongly associated with a negative outcome of that parent’s application.

Bearing all this in mind, let’s take a look at a recent relocation case we handled where we were able to help protect the meaningful relationship between a father and his little girl.

Our client’s story

We acted for a father whose infant child was unilaterally relocated from NSW to WA by the mother after separation. The mother had wished to be closer to her family. The father began proceedings in the Family Court of WA, seeking that the baby be returned to NSW pending determination of parenting arrangements by the court.

The issues

The mother had made countless claims of family violence perpetrated by the father and it was necessary for the court to consider whether the child would be at risk from the father.

The mother submitted that the child should spend no time with the father, unless he (and/or his family) travelled to WA to spend time with the little girl. Interestingly, the mother did not press for the father’s time with the child to be supervised, despite her claims of family violence.

What we did

Our lawyer Michael Seton acted on behalf of the father in this matter. The case was complex and lengthy, taking three years to resolve. Due to the interstate nature of the matter, it was necessary to conduct proceedings by telephone and virtual court platforms.

For trial, Michael also travelled to Perth together with the father to appear in person as trial advocate before the Family Court of WA. 

The outcome

The mother’s claims of family violence were ultimately withdrawn under the weight of evidence we provided. We successfully obtained interim orders early in the proceedings for the child to spend time with the father and his family both in NSW and WA and for regular video communication, ensuring that the child maintained a meaningful relationship with her father and paternal family. This was particularly important given the tender age of the child and the protracted nature of litigation.

During the trial in Perth, agreement was reached to settle the matter on terms that provided for a significant increase, in a staged manner, of the time that the child spends with her father and paternal family, particularly in NSW.

On that basis, our client did not press for the relocation order as he considered it to be in the child’s best interests to continue her close relationship with the maternal family in WA.

This child-focused outcome ensures that the father will be able to spend significant and increasing time with his young daughter going forward, and therefore remain a strong presence in her life despite her relocation interstate. 

If you have a concern about a family law matter such as one involving the unilateral relocation of your children, we have specialists who can help you right now. So please get in touch with our expert Central Coast lawyers who can offer you sound legal advice and a fresh approach. Contact us today to make an appointment.

Source:

https://aifs.gov.au/media-releases/rough-road-relocation

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