An interesting case involving a very young baby was decided by the Full Court of the Family Court in Sydney in February 2019. The baby’s mother, Ms Mareet, and the father, Mr Colbrooke, had a brief relationship between May and September 2017, as a result of which the baby was born in Childtown (not the town’s real name – place names were prohibited by the Court from being published), New South Wales, in March 2018.
When the parties separated, they were living in the Northern Territory. Ms Mareet told the Court that she “fled” from there because of Mr Colbrooke’s domestic violence against her. She moved to Fishville in New South Wales, where her family lived. Ms Mareet then moved again, before the baby was born, to Desertown, in Queensland. She leased a house there and enrolled her older child from a previous relationship, a 4 year old, at a local pre-school. The baby’s father, Mr Colbrooke, applied to the Federal Circuit Court for an Order that Ms Mareet return the child to Fishville and live there temporarily with her mother. The Court ordered Ms Mareet to move from Desertown to Fishville (and, of course, the children were to move with her) and she was restrained from leaving the Fishville region.
Confused? Read on.
Ms Mareet appealed to the Full Court of the Family Court against the Orders, on the basis that she should not have been ordered to move to Fishville from Desertown and to stay in the Fishville area. The Full Court said that, while the Family Law Act allows a Court to order or refuse a relocation, that power should only rarely be used. As a Family Court Judge famously said some years ago:
“It’s a big country, freedom of movement around the continent is a basic right of a citizen – there are plenty of airline flights to go and see your child”, or something like that.
The Full Court in this case said that making such an Order, that a parent could or could not relocate with a child, should have been avoided, if the Court gave adequate consideration to other forms of access to the child (like getting on a plane and sharing the cost, or driving to meet halfway between the parents’ homes).
Back to Ms Mareet and Mr Colbrooke. The Full Court said that the baby’s residence had never been in Fishville, or the surrounding area in New South Wales. They stated that the Trial Judge, incorrectly, did not consider making Orders that Mr Colbrooke travel to Desertown to see the baby, nor did the Judge consider the effect of the move to Fishville on Ms Mareet’s 4 year old child, who was enrolled at pre-school at Desertown, nor the financial burden on Ms Mareet breaking her lease on her house at Desertown and other financial implications of being forced to move.
The Trial Judge had said that Ms Mareet, the baby and the 4 year old could live with Ms Mareet’s parents in Fishville, even though Ms Mareet’s mother told the Court that she could not accommodate Ms Mareet and the children in her home. In the end, the father, Mr Colbrooke, agreed to the Appeal and Ms Mareet and the two children were allowed to continue to live in Desertown.
The report of the case does not say what happened about Mr Colbrooke seeing the baby, but arrangements were no doubt made for that in discussions between the parties’ lawyers.
And the take away from the case? Although the Trial Judge clearly “got it wrong”, the message that comes through when reading the Full Court’s judgement is that it is difficult to stop a parent (usually, but not always, the mother) moving with the children to another town or to a different state. However, there need to be good reasons for wanting to move – the parent with the children has a new partner in another town or interstate, her family and support networks are there, they have a new job with a significant increase in income in that town or state – ideally a combination of more than one of those factors. Moving overseas is a more difficult task.
It’s always best to get expert advice from an experienced Family Lawyer if you are considering a move with the children – even if it’s only to the next suburb. To relocate with the children without the consent of other party or a Court Order can lead to the parent that moved with the children being ordered back – at least until the Court can deal with the matter.
This is general information only. Please contact the team at Tonkin Legal for expert legal advice that takes your unique personal situation into account prior to making any decisions based on this article.
