In the case of Franklyn and Horne (not their real names) which was decided by the Full Court of the Family Court (that is, the Appeal Court) on 23 December 2019, the Court unanimously allowed the mother’s appeal against an interim Order made in the Federal Circuit Court. The mother, without the father’s knowledge or consent, had relocated with their four-year-old child from Central West NSW to South Eastern Queensland. The Federal Circuit Court had ordered the mother to return to her home in NSW so that the father could spend five hours each Saturday with the child.
At the time of the separation, the child had had little or no contact with their father for seven months, because the mother had not provided him with her address, and she had obtained a Family Violence Order against the father, which was later discharged.
When the father made application for interim Orders in the Federal Circuit Court, he obtained two hours a fortnight with the child at a contact centre. Four months later, the father filed an application to vary that Order. It was at that time the mother disclosed that she had already relocated with the child to South Eastern Queensland.
The father then sought an Order that the mother return to NSW, that he have unsupervised time with the child and that, if the mother failed to move back to NSW, then the child would live with him.
On Appeal, the Full Court said that, while it was clear that the child’s interests were the paramount concern of the Court (which is enshrined under the Family Law Act), those interests are not the sole matter to be decided in making Parenting Orders. The Court went on to say that parents should be able to enjoy as much freedom to live where they please, so long as that compatible with their obligations regarding children. Only where a child’s welfare would be badly affected must a parent’s right to such freedom of movement give way to the paramount consideration of the children’s best interests.
The Full Court said that, when the mother relocated with the child to South East Queensland, she did so knowing that she would still need to comply with the interim Parenting Orders that had been made in the Federal Circuit Court, requiring her to provide the child to the father at a contact centre in NSW once every fortnight. In the end, the Full Court said that the mother and the child could stay in South Eastern Queensland, on the basis that she travelled to NSW with the child, once a fortnight so that the father could spend time with him.
These types of cases are determined on their particular facts, so you should never relocate with a child until you have seen your family lawyer.