Moving the kids away after separation. As we become more of a mobile society I am more frequently asked by a parent who has separated, “Am I allowed to move away with the kids?”  Often, the parent wants to move to a rural area or interstate.

In brief, removing children from their usual environment requires the consent of the other parent.  In the absence of consent, it is necessary to apply to the Family Court for permission to move.  Whether the Court gives the permission very much depends on the individual circumstances of the case.

But, what about a parent who doesn’t get permission and simply moves?  In general, courts take a dim view of a party who takes matters into their own hands.  The Court has the power to make an order that the children return to their original home and that might mean that they live with the other parent.

The Courts overriding task, though, is to consider the best interest of the children.  Sometimes this conflicts with a parent who has done the wrong thing by taking the children away.  Understandably, this is difficult and upsetting for a parent to understand.  The ‘wronged’ parent justifiably feels aggrieved for what their former spouse has done by taking the children away.  In these rare cases, it can be hard to see the justice in the decision of the Court.  But the Court is charged with ensuring the best interest of the children as its paramount consideration.

A recent case decided by the Full Court of the Family Court perhaps provides an example of this.  The parties had been in a relationship for some time and married in March 2004.  There was one child, a daughter who was born in 2004.  The parties separated in 2005.

During the course of the relationship and following separation, the parties lived in the Eastern Suburbs of Sydney.  Following separation, the daughter lived with her mother and by arrangement, spent time with her father.

In January 2008, the mother moved with her daughter to a regional area South West of Sydney (referred to in the judgment as “M”).  It would appear uncontroversial that this step was taken without notice to the father.  The reason the mother moved to this area was because it was where her father lived and her mother owned a home.

In February 2008, the father commenced proceedings in the Federal Magistrates Court.  He sought orders that the mother be restrained from relocating the child’s residence outside of the Eastern Suburbs of Sydney.  The matter proceeded to a contested hearing and the father was successful.  The Court ordered that she was to return to live with the child by 3 March 2008.

However, the parties entered into a consent arrangement on 5 March 2008.  The orders permitted the mother to live with the daughter in M until January 2010 following which she was to return to Sydney.  The daughter was due to commence school in 2010.

In November 2008, the mother and her new partner purchased a new property in M.  In April 2009, the mother filed an application to vary the consent orders dated 5 March 2008. The orders sought by the mother were that she be permitted to continue to live with the daughter in M.  The matter was heard by the Family Court in September 2009 and the mother’s application was dismissed.

The daughter commenced school in Sydney in 2010.  The mother married her partner in October 2011 and they had a son born in March 2012.  The mother’s husband continued to live and work in M.

In order to comply with the orders made on 5 March 2008, the mother rented a home in Sydney.  She would stay in Sydney with the daughter which allowed the father to spend time with the daughter, and then return to M for a few days to be with her husband and son until they were required to return to Sydney to facilitate the daughters time with her father.

This continued until December 2012, when the mother applied to the Court to discharge the orders made 5 March 2008, so that she could live permanently with her daughter and family at M.  The Judge who heard the matter allowed the mothers application.  The Judge found that the daughter was struggling with having to live in a number of different homes.  Some things the Judge identified were:

  • The child’s perception that there is a degree of conflict between the mother and father;
  • The child’s experiences in organising and transferring her belongings between various households in Sydney and between Sydney and M;
  • Adjusting to the different pattern of care each parent provides;
  • Managing the emotional adjustment of moving between her parents and the respective households.

The father appealed the decision to the Full Court.  One of the arguments advanced by the father on appeal was that a party cannot disobey parenting orders, and then as a consequence of that disobedience have a court entertain an application to change the orders.  The Full Court disagreed.  The Full Court said:

“When evidence is presented which demonstrates that, for whatever reason, a child is in a difficult situation which one or other of the child’s parents seeks to address, even if that parent, in disobedience of orders, created the circumstance under which the child suffers, the child needs the problem to be solved.  Even where the significant change in circumstances has been created in breach of the order, the child’s best interests may require that the court entertain that parent’s application to change the orders”.

It is not clear from the judgment, precisely what orders the father was seeking other than a dismissal of the mother’s application.  Perhaps this is where the father went wrong.  He was focused on the decisions the mother was making in light of the orders that had already been made when the focus should have been on how the arrangement was affecting his daughter.

Clearly, something needed to change to assist the daughter and unfortunately for the father, in order to do so, the Court decided it was best to grant the mothers application.