Tuesday, 18 September 2007

CLEARER GUIDANCE FOR COURTS ON RELOCATION CASES

The Commonwealth Government has committed to insert provisions within the Family Law Act to provide courts with greater clarity on how to deal with relocation issues arising out of custody arrangements.
This commitment is made in the Government’s response to the Family Law Council's Report to the Attorney-General on Relocation. The response was tabled in Parliament.

Attorney-General Philip Ruddock said currently there is no specific guidance in the Act for relocation orders or arrangements. The new legislative provisions will make it easier for litigants to understand the child-focused principles that apply to relocation cases.
Specifically the provisions will ensure that courts consider: alternatives to the proposed relocation; whether it is reasonable and practicable for a person opposing a relocation to move closer to the child if the relocation were permitted; and whether the person who is opposing the relocation could assume primary caring responsibility should the person relocating choose to do so without taking the child.
Courts will then be obliged to reframe parenting orders in the light of the child’s best interests, considering factors such as whether relocation would interfere with the child’s ability to form a relationship with both parents.
Mr Ruddock said the Australian Government is paying close attention to court outcomes to see whether, with or without these amendments, courts are putting children’s interests at the centre of their decision making on relocation cases.
“The Shared Parental Responsibility Act 2006 was meant to ensure better outcomes for children and both parents,” Mr Ruddock said.
“Today’s commitment is a step to clarify that aim. However as I have always said if there is concern the legislation does not achieve the aims it intended we may need to consider further legislation.”
"It is critical the family law system provides a clear, consistent approach to resolving family law relocation disputes, and acknowledges that the best interests of children are the central issue."
The Family Law Council report is in response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill in 2005. The Family Law Council is a statutory body which advises the Attorney-General on a range of family law issues.

Source: Ministerial Media Release

2 comments:

Langers said...

I'm not sure if the application of the most recent legislation has brought about the right intent. There now appears to be a bias towards the non relocating parent, or perhaps more so it is just that many legal professionals are preferring to stear clear of the issue until it becomes clarified in the courts. I know from personal experience that the "system" would now seem to favour the non relocating parent, in that they can make the dispute over potential relocation drag out for a long time, often with little regard for the best interests of the children. Particularly in cases where there is clear evidence that the non relocating parent's only intent is to make things as difficult as possible for the relocating parent, there appears little that can be done other than wait. There also appears to be little than can be done to reduce the harm that is done on the children involved. The relocating parent can have the best intentions, but the non relocating parent is in a position where they can play with the children's emotional wellbeing. It would appear that the family dispute centres are ill prepared for dealing with parents who have no interest in discussion or compromise, and don't appear to facilitate any assistance in cases of high conflict and polarised viewpoints, except to again assist the non relocating parent in adding to the timeframe. Whilst understanding the complex nature of the issue, and appreciating that every case is different, there does not appear to be any emphasis put on a timely resolution. In fact, there appears to be little information to assist people in obtaining realistic expectations for how long something like this would take to resolve. For a family wishing to stabilise things post separation, the legislation, or more so the implementation of it to date, appears to do little but put all parties (particularly the children) in a state of limbo. I can understand the need for careful judgment to be made in these cases, but perhaps there is room for some pre-court action step that gives both parties a clear indication of what the court process is, what is taken into account, recent case history, etc. I appreciate that all of this information is available for people who go looking for it, but for a parent seeking to prevent relocation often the only thought in their head is "you're not taking my children away". Trying to break down that attitude, particularly between parents who are in high conflict and have polarised views would in my opinion add immeasurably to the implementation of the legislation.

Timetolive09 said...

Here, Here,
I am the parent seeking location, and was bought back to the matrimonial home with my kids. It was deemed that I am the primary carer, but we were forced by the Court system to live in a town with no support, no opportunities for work, under the financial control of the ex. We are currently in limbo waiting to return to court to fight descision. It was agreed in Interim hearing that ex would pay the mortgage costs of the matrimonial home we are now 11 days from repossession. It is apparent that the children and I will find it nescessary to relocate again which is just more disruption and unsettlement for the kids. I do not believe that ultimately their best interests were considered. If they were the court system would have made it their business to investigate whether the opposing parent was actually in a financial position to offer and maintain such offers of financial assistance, especially since it was made clear to the courts that he was not.
Just another case of control in a relationship plagued by Domestic Violence and not ultimately connected to what he believed was in the best interest of the children.