Friday, 15 August 2008

Federal Magistrates Court case: relocation Darwin to Cairns

The 2006 amendments have thrown up some interesting changes to how people litigate, as illustrated in the recent Federal Magistrates Court case of Price and Barnett.

The parties lived in Darwin. When they separated, the mother moved to Cairns where her family lived, but following the start of the then court proceedings, quickly moved back to Darwin. Consent orders were entered into, providing that the child, J, live with the mother, and be with the father each alternate weekend and one night a week.

The father then went back to court seeking equal time. This was seen by the court as an attempt to "head her off at the pass", as the mother really wanted to move to Cairns.

The father's pre-emptive move was unsuccessful, and therefore begs the question: if he had done nothing, would the mother have brought a relocation application anyway?

In any case, one comment that Federal Magistrate Cameron made echoed concerns expressed at the time of the enactment of the 2006 changes: that they would make it harder to relocate.

This is what his Honour had to say:

(T)he effect of the July 2006 amendments is to make success in relocation applications more difficult because the Act demonstrates a clear preference, in circumstances of shared parental responsibility, for equal time or substantial and significant time. Clearly, relocation makes appropriate equal time impossible practically and makes substantial and significant time very problematic. This suggests that a relocation application which will produce neither of these outcomes is likely to face difficulties because of s.65DAA.


To make sense of what his Honour said, the relevant parts of section 65DAA of the Family Law Act provide:

(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.


Substantial and significant time

(2) If:

(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

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