Saturday, 27 March 2010

Relocation principles

Some of the hardest types of cases to agree on, because the outcomes are so uncertain, are relocation cases.

Helpfully, Justice Murphy of the Family Court has summarised the principles that apply to relocation cases following the 2006 changes to the Family Law Act. He did so in Pitken and Hendry:

  • A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances;
  • A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
  • Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children;
  • In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
  • All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different.
  • The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
  • The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;
  • Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order;
  • Findings relevant to s 65DAA, if applicable, can and often more appropriately should be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests; Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires;
  • The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.

His Honour's summary of the law must now be seen as subject to the views by the High Court in the Mt Isa Case about the provisions of s.65DAA of the Family Law Act.

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