Relocation - Best Interests of the Child?

Having children means, as any parent knows, some surrender of personal freedom by the parents. Parents negotiate their relationships as adults, and as parents, and make compromises. Often these compromises are made even by parents who have separated. When they do not, or cannot, the court is asked to intervene.

This emerges often in those cases that are called "relocation cases": in other words, one of the parents wants to move with the child after separation. It is common enough in today's globalised world for these relocations, or cases concerning them, to feature fairly dramatic moves from one part of the world to another and the challenge for the courts is to deal with the best interest of the children in those circumstances.

Two recent cases deal with the consequences, one international and one local. The outcomes are markedly different.

Relocation cases are no different from any other kind of parenting case. There are no special rules. The best interest of the children remain the paramount consideration.

In the case of Sarwant & Karanth there was a very troubling history. It involved decisions by no less than three courts. One of those decisions appears outrageous, though we don't know why the court concerned made the orders that it did.

The father was an Australian man of Indian descent and started an internet relationship with a woman in India. They met in October 2009 for the first time and 12 days later they were married in India. Three months after that, the father returned to Australia but the mother remained in India, three and a half months pregnant.

Four months later the mother arrived in Australia with a spouse visa and the parties began living together. Two months after that they moved to a country town. They lived with friends of the father. The child was born in July 2010. A month later, as the trial judge later found, episodes of violence by the the father against the mother occurred. The father was charged, with serious offences. For reasons that are complicated, the father was not convicted. Shortly after that the mother and child came to Sydney and in her absence the father went to a local court in the country town and, without notice to the mother, obtained an order that the child live with him, despite the fact that the child was a little more than a month old and being breastfed.Despite the police being reluctant to enforce the order, they eventually did so, coming to the mother's home with the father and his friends, and taking the child. The trial judge recorded "the father did not consider the child would be upset by being removed from the mother's care....".

Subsequently there were proceedings in the Family Court before a judge and then an appeal to the Full Court of the Family Court. This was because the mother then applied for an order that the child live with her, and that she be permitted to move with the child to India. The mother was successful both before the judge and in the appeal court, and the family violence issues were an important but not the only factor in the decision. One significant factor, as noted by the appeal court, was that the father never proposed that he could go to India to maintain his relationship with the child if the mother was allowed to go there.

By contrast, there is the case of Adamson & Adamson. Here the parties, who lived in one of the capital cities in Australia, separated and shortly after separation the mother moved to a rural centre about 200 kilometres from the city. The child was then about 12 months old. By the time the case came to trial, they had been living there for more than 2 1/2 years which is itself a sad reflection on how long cases take to finish.

Shortly before the case concluded, the father himself moved away from the city to a town about 140 kilometres away from where the mother and child lived: about two hours car travel. The father asked the court to order that the mother move with the child to an area closer to where he lived.

As a judge in a previous case remarked, if a court has the power to stop somebody moving with a child, there can be no doubt that the court also has the power to force somebody to move with a child. Somewhat surprisingly, this is what the judge at the trial actually did: ordered the mother to move with the child, from her home, to nearer where the father had only recently moved to.

What the appeal court did here was to confirm that the court had the power to do this, but that it was a power that would be used only in very exceptional circumstances, and these were not exceptional circumstances. The appeal was therefore successful. The appeal court reemphasised, drawing on a High Court case some years before, that it is the interests of the child which are paramount, not the interests or needs of the parents, let alone one of them.

Disclaimer: The articles on this page are correct at the time of writing but changes in the law or procedure  may affect the accuracy of the information. Should you require any specific legal advice please contact us.