Here we go again

You read it here first! We told you last August that the Family Court might change its mind about the interpretation of recent changes to the Family Law Act. In our last report they decided a child should be allowed to move interstate with a parent who has a "residency order" (i.e. an order that says who a child usually lives with). Of course, it wasn’t quite that straightforward.

In that case a mother was allowed to take her two children from Cairns to live in Victoria, even though the new family laws tell us that children have a right to regularly see both parents. Was that decision a result of the particular circumstances of that case? Remember, at the time the Court made it clear it could reach a different decision if that was in the best interests of the child – and emphasised that those interests would always be the crucial test.

The issue

In the most recent case the Family Court considered a similar issue, an application by a mother to take children overseas. The four children are aged between three and fourteen, and their parents were divorced in 1996. The mother, who has the children living with her, wanted to return to Britain where she had lived before coming to Australia in 1980. It is important to note that the judge found both parents were devoted to their children.

Why the move?

The mother had legitimate reasons to relocate. She told the court she would find it easier, both financially and emotionally, to be near her family in Britain. She also claimed the children had not seen much of the father, so it would not be a terrible loss for them to move away. The mother pointed out that the three older children supported the plan to move.

What the judge said

Justice Fogarty, a very experienced and respected Family Court judge, refused the application. He did not believe he was bound to rely on the wishes of the children, even though they were persuasive. He was concerned that the children might have been caught up in the romance of overseas travel, and he emphasised the importance of the place of a father in the lives of children. In the end it was a balancing act, between the advantages of the move and the need to maintain contact with the father.

The difference this time

Yes, this is different to the decision the Family Court made the last time it considered the issue. What are the differences? Well, this time the proposed move is overseas and not merely interstate, which clearly inhibits the ability of the non-custodial parent to visit the children. But apart from the different circumstances, has the Family Court changed its mind?

Not really, because (as the father’s barrister said after the case) it will always try to do what is best for the children. If it's in the best interests of the child to have contact with both parents and stay where they are, that might be enforced. In other words, each case will be judged on its own circumstances. The Family Court must be allowed to be flexible, especially where the interests of children are at stake, otherwise it cannot take account of the variable circumstances that come together to create the tapestry of a child’s life. In the end it probably comes down to common sense. Anyway, stay tuned, because this decision will likely be appealed to the Full Court of the Family Court.

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