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FAMILY LAW COUNCIL


RELOCATION


A report to the Attorney-General prepared by
the Family Law Council


MAY 2006

ISBN 0 642 21179 5


© Commonwealth of Australia 2006


This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth available from the Department of Communications, Information Technology and the Arts. Requests and inquiries concerning reproduction and rights should be addressed to the Commonwealth Copyright Administration, Intellectual Property Branch, Department of Communications, Information Technology and the Arts, GPO Box 2154, Canberra ACT 2601 or posted at
For information about this report, or more generally about the Family Law Council’s work, please contact the Council’s Secretariat at:
Robert Garran Offices

National Circuit

BARTON ACT 2600
Phone 02 6234 4829

Fax 02 6234 4811

Email flc@ag.gov.au
Or visit the Council’s website at <http://www.law.gov.au/flc>.
Contents

_________________________________________________________________________





Executive summary 3

List of recommendations 6

1. Introduction 8

Background 8

Terms of reference 8

Public consultation 9

Outline of this report 10


2. What is relocation? 11

Population mobility 12

Statistics on relocation 14

Defining relocation 16



3. The impact of relocation 21

The impact of relocation on children 21

Recommendation 1 25

The impact of relocation on parents 26

Recommendation 2 33

The impact of relocation on others 34



4. Current law in Australia 38

Family Law Act provisions 39

Case law principles guiding relocation decisions 45

Immigration status of parties in relocation cases 51



5. Current law in other jurisdictions 53

“Pro-relocation” jurisdictions 53

“Neutral” jurisdictions 54

“Anti-relocation” jurisdictions 56

European approaches to relocation 58

6. Recommended changes to the law on relocation 60

Should Australia have a legal presumption for or against relocation? 63

Recommendation 3 65

Recommendation of the LACA Committee 65

Legislative guidelines 67

Recommendation 4 73


Bibliography 74



Executive summary

_________________________________________________________________________



On 13 February 2006, the Family Law Council released a discussion paper on relocation. There were 43 submissions made in response to the discussion paper. This report brings together the findings of that public consultation, and offers advice on the Attorney General’s terms of reference (set out in full in chapter 1).
Defining relocation
While relocation cases come before the court with regularity, there are no specific provisions in the Family Law Act 1975 dealing with relocation. Therefore, the Act does not define the term “relocation”. Council believes that if legislative provisions relating to relocation are added to the Family Law Act, a definition should be added to ensure it is clear when those legislative provisions are triggered.
The impact of relocation on children
The limited amount of social science research that there is on the impact of relocation on children tends to come from North America. However, Council has noted two major Australian studies which will provide greater insight into this question. The findings of these projects are likely to be of significant assistance to policy-makers, however, the results will not be available for a few years. Council recommends that if changes are made to relocation law, those changes should be reviewed when the results of these studies become available (Recommendation 1).
The impact of relocation on parents
Freedom of movement

Section 92 of the Constitution provides Australians with a right of freedom of movement between States within Australia. Council believes that this should be a factor to consider when making relocation decisions, but parents’ rights are subordinate to the best interests of children. This view is consistent with the existing law.

Non-resident parents’ obligations
Council believes there should be a stronger emphasis on the obligations of both parents to maintain a meaningful relationship with their child. Parenting orders should be considered mandatory, not permissive, and consequences should flow from breaches of those orders. Council proposes that sections 65N and 70NAE of the Family Law Act be amended to reinforce this idea (Recommendation 2). These changes will limit a parent’s ability to enforce a parenting order against the other parent if they themselves have breached that order.
Notice provisions
Some submissions suggested a notice provision be inserted into the Family Law Act 1975 to ensure a parent notifies the other parent before moving a child’s residence. Council believes this is unnecessary because section 65DAC of the Family Law Amendment (Shared Parental Responsibility) Act 2006 requires decisions about “major long-term issues” to be made jointly.
The impact of relocation on other people
The discussion paper invited submissions to address how the law should take account of the interests of other people affected by relocation decisions. “Other people” include children not the subject of the parenting order (half-siblings, step-children), new partners, grandparents and other relatives. Most submissions believed, and Council agreed, that the current law is sufficient to take account of the interests of others.
Current law in Australia
The report outlines the law on relocation in Australia, including:


  • provisions in Part VII of the Family Law Act,
  • amendments contained in the Shared Parental Responsibility Act, and


  • case law.

Virtual visitation”


Paragraph 60B(2)(b) of the Shared Parental Responsibility Act provides for “communicating” with a child. There are a number of ways a parent might have contact with a child, such as by telephone, email, webcam or by letter. There is some literature on the new phenomenon of “virtual visitation”. Council is of the view that communication over the telephone and internet does have a place, but is not sufficient for the child to maintain a meaningful relationship with a parent who lives elsewhere at some distance.
Best interests of the child
Council does not think it is necessary for the Family Law Act to be amended to provide a definition of “best interests of the child”. Council believes that the current legislative approach of looking at a number of factors to determine best interests stresses the complexity of the task without the necessity of defining the concept.
Current law in other jurisdictions
The Attorney-General’s terms of reference directed the Council to consider “approaches to the problem of relocation in other jurisdictions”. The approaches taken in the United Kingdom, New Zealand, Canada, selected states in the United States of America and some European jurisdictions were considered. No uniform approach to relocation decision-making was discernible amongst the overseas jurisdictions considered by Council.
Recommended changes to the law on relocation
A legal presumption for or against relocation

Council recommends against inserting a presumption in the Family Law Act to deal with relocation cases (Recommendation 3). Council believes that a presumption is not an appropriate way for the law to deal with relocation cases, and would prefer a case by case approach to ensure the best interests of the child remain paramount.

LACA Committee recommendation
In August 2005 the Legal and Constitutional Affairs (LACA) Committee recommended in its report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 that a relocation provision be inserted into the Family Law Act. The Government response to this recommendation was that the Family Law Council give particular consideration to it as part of its inquiry into relocation.
Council is persuaded that enacting this particular provision would not be the optimal approach, but agrees that change to the Family Law Act would be appropriate and instead has recommended an alternative provision to apply to relocation matters.
Council’s proposed relocation provision
Council has reached the conclusion that a specific relocation provision should be inserted into the Family Law Act (Recommendation 4). While the best interests of the child should remain the paramount consideration, Council would like some additional considerations relevant to relocation to be outlined. Such a framework might assist users of the Act to better understand the factors the court will consider and will be of particular assistance to unrepresented litigants.
Council has recommended a provision which:


  • provides a definition of “relocation” in its preamble

  • requires the court to consider the alternative proposals offered by the parties about where and with whom the child lives

  • requires the court to consider what parenting order is in the child’s best interests having regard to section 60CC, the child’s age and development level, and the impact on the child of the emotional and mental state of either party if their proposals are not accepted

  • requires the court to consider, if the relocation were to go ahead:
  • what arrangements can be made to protect the child from harm and to maintain the child’s meaningful relationships, and


  • how the increased costs of maintaining the child’s relationship with the non-resident parent and other significant people should be allocated.


List of recommendations

_________________________________________________________________________



Recommendation 1 (paragraph 3.23, page 24)


    If changes are made to relocation law as a result of Council’s report, any changes should be reviewed when the results of the Australian social science research currently underway become available.


Recommendation 2 (paragraph 3.62, page 32)


    Council recommends two changes to reinforce that orders impose obligations, as follows.



  1. Insert new subsection 65N(2) which reads “A parenting order that deals with whom the child is to spend time, imposes an obligation to maintain a relationship with a child in accordance with the terms of the order”.



  1. Add to section 70NAE a further subsection giving the respondent a reasonable excuse for contravention, which is that “the applicant has repeatedly failed to exercise his or her responsibilities in accordance with the order”.


Recommendation 3 (paragraph 6.30, page 64)


    Council recommends against inserting a presumption in the Family Law Act to deal with relocation cases.


Recommendation 4 (paragraph 6.72, page 73)

Council recommends that the following provision be inserted in the Family Law Act.

A) Where there is a dispute concerning a change of where a child lives in such a way as to substantially affect the child’s ability to live with or spend time with a parent or other person who is significant to the child’s care, welfare and development, the court must:
(1) Consider the different proposals and details of where and with whom a child should live, including:
(a) What alternatives there are to the proposed relocation;
(b) Whether it is reasonable and practicable for the person opposing the application to move to be closer to the child if the relocation were to be permitted; and
(c) Whether the person who is opposing the relocation is willing and able to assume primary caring responsibility for the child if the person proposing to relocate chooses to do so without taking the child.
(2) Consider which parenting orders are in the child’s best interests having regard to the objects contained in section 60B and all relevant factors listed in section 60CC, and:
(a) Whether given the age and developmental level of the child, the child’s relocation would interfere with the child’s ability to form strong attachments with both parents;
(b) If a party were to relocate:
(i) What arrangements, consistent with the need to protect the child from physical or psychological harm, can be made to ensure that the child maintains as meaningful a relationship with both parents and people who are significant to the child’s care, welfare and development as is possible in the circumstances;
(ii) How the increased costs involved for the child to spend time with or communicate with a parent or people who are significant to the child’s care, welfare and development should be allocated;
(c) The effect on the child of the emotional and mental state of either party if their proposals are not accepted.

(B) The court may also consider the reasons the parent wishes to move away and any other relevant considerations.


1. Introduction

_________________________________________________________________________



Background


  1. This report considers the law on relocation in Australia, including whether and how it should be reformed.




  1. A number of parliamentary inquiries looking into aspects of family law have considered the issue of relocation,1 however, none of these inquiries have focused solely on relocation nor explored the issue in great detail. This report offers a comprehensive assessment of the law on relocation as it is, and offers recommendations on how it might be improved.


Terms of reference


  1. In May 2000 the Family Law Council discussed the amendments made to the Family Law Act 1975 (hereafter referred to as ‘Family Law Act’) by the Family Law Reform Act 1995, in relation to the paramountcy principle (the rule that the best interests of the child must be regarded as the paramount consideration when making specified decisions in the Family Law Act).




  1. Council appointed a committee to develop draft terms of reference which were approved by the Attorney General on 9 October 2000. On 3 June 2003 the Attorney General agreed to extend the terms of reference to include an examination of relocation cases. The terms of reference are:

1. To examine the nature and application of the legal principle that the child’s best interests must be regarded as the paramount consideration in family law litigation concerning children and to consider whether the Family Law Act 1975 should be amended in this respect.

The Council shall have particular regard to:


  • the law before and after the Family Law Reform Act 1995; and

  • the nature and scope of similar provisions in other jurisdictions.

2. To examine:

(1) How the best interests of the child principle set out in section 65E of the Family Law Act operates in relation to other legitimate interests in a relocation case;

(2) How best to take account of the interests of other children who may be affected by the relocation decision but are not the subject of proceedings;

(3) How best to take account of the interests of other people affected by the relocation decision;

(4) The significance of section 92 of the Constitution for the law of relocation;

(5) Approaches to the problem of relocation in other jurisdictions; and



(6) Whether the Family Law Act should be amended to provide specific criteria for making relocation decisions.


  1. In December 2004 the Council released a discussion paper titled The ‘Child Paramountcy Principle’ in the Family Law Act. The scope of the discussion paper was limited to paragraph 1 of the terms of reference and did not examine paragraph 2. A letter of advice on the paramountcy principle was provided to the Attorney General on 17 January 2006 (see Appendix C).




  1. On 13 February 2006, Council released a discussion paper on relocation. The purpose of the discussion paper was to consult on the issues covered in paragraph 2 of the terms of reference. This report brings together the findings of this public consultation, and offers advice on the Attorney General’s terms of reference.


Public consultation


  1. The discussion paper released in February 2006 set out the background and issues relating to relocation, and sought public comment on a number of questions. It was sent to over 800 individuals and organisations on the Council’s mailing list and also to a number of stakeholders whom the Council considered, because of their work or expertise, might wish to make submissions. A copy of the discussion paper was also sent to all members of parliament and senators, and was made available on the Council’s website.2




  1. There were 43 submissions made in response to the discussion paper. A list of the persons and organisations making submissions is provided in Appendix A.




  1. The Council found that the submissions put forward a range of relevant and helpful views on the issues being examined and wishes to thank those persons and organisations who made submissions. Those submissions have been of significant assistance in the drafting of this report.




  1. Submissions were received from groups in the following categories:

  • academics (n=4)

  • children’s interest groups (n=1)

  • Courts/judges/magistrates (n=1)

  • dispute resolution organisations (n=3)

  • government departments/agencies/advisory bodies (n=5)

  • Indigenous interest groups (n=3)

  • legal aid bodies/community legal services (n=2)
  • legal practitioner groups/lawyers/law societies (n=5)


  • members of parliament (n=2)

  • men’s interest groups (n=7)

  • private citizens (n=7)

  • women’s interest groups (n=3).


Outline of this report


  1. This report begins by describing what relocation is, its prevalence and how it is legally defined. Issues of definition are important to consider, because the way the concept is defined may affect how relocation decisions are made.




  1. There is then a discussion of the impact of relocation on children, parents and other people. The chapter starts by considering impact on children and considers the available social science research. Discussion of the impact on parents includes consideration of freedom of movement, as provided for under section 92 of the Constitution. The impact of relocation on other people includes consideration of the interests of other children (for example, half siblings and step-children) and grandparents.




  1. The report then outlines Australia’s current law on relocation. This includes consideration of the Family Law Act, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (hereafter referred to as the ‘Shared Parental Responsibility Act’) and the common law (including the High Court’s decision in U v U3).



  1. Next, the law on relocation in overseas jurisdictions is considered. Particular focus is placed on the United Kingdom, New Zealand, Canada and certain states in the United States of America. The approach to relocation in these jurisdictions varies. Some have presumptions in favour of relocation, some against, and some have no presumptions at all. Considering the ways other jurisdictions handle relocation is important because Australia may learn from their experiences about how to improve the law on relocation.





  1. Finally, the report considers whether Australian law should be amended to make specific provision for relocation cases. The question of whether the law should adopt presumptions about relocation is considered, and the advantages and disadvantages of having specific legislative criteria for making relocation decisions are assessed.


2. What is relocation?

_________________________________________________________________________





  1. In family law, cases involving a parent’s move with their child are described as “relocation cases”. These cases can involve moves of relatively short distances (eg 115 km4) to moves as far as from Australia to the United Kingdom.5 Intrastate, interstate and international relocation cases are all considered in this report. There is no definition of “relocation” in the Family Law Act. A discussion of some approaches to defining relocation is provided later in this chapter.




  1. Relocation cases cause legal practitioners and judicial officers much angst, due to the competing interests involved. When appearing before the House of Representatives Standing Committee on Legal and Constitutional Affairs, the Chief Justice of the Family Court of Australia described relocation cases as follows.

Relocation cases are the hardest cases that the court does, unquestionably. If you read the judgments, in almost every judgment at first instance and by the Full Court you will see the comment that these cases are heart-wrenching, they are difficult and they do not allow for an easy answer. Internationally, they pose exactly the same problems as they pose in Australia. I have heard them described as cases which pose a dilemma rather than a problem: a problem can be solved: a dilemma is insoluble.6




  1. Watts has described the “essential tension” in relocation cases to be “between the child’s right to have a relationship with the non-resident parent7 and the child’s interest in ordinarily living with a residence parent who is happy and not ‘imprisoned’ in a place the parent does not want to be”.8




  1. While relocation is a hard issue to adjudicate, it is not an uncommon issue in dispute before the court. While the precise number of children affected by relocation is unknown, data from courts such as the Family Court of Western Australia, as well as the amount of case law in this area, 9 indicate that relocation is a regularly litigated issue.


Population mobility


  1. The Australian population can be described as fairly mobile. Australian Bureau of Statistics data reveal that in the 2004–05 financial year a total of 358,800 people moved interstate. More than one in three of these movers were aged 20–34 years.10 Of course some people choose to go further afield and move overseas. In 2004–05 there were 62,600 permanent departures from the country. Furthermore, in the same year 276,400 Australian residents departed “long-term” (defined as more than 12 months).11 In some instances this may be a return to country of origin, given that 24% of Australia’s residents were born overseas (2004 data).12



  1. Australian Bureau of Statistics data on divorce reveal that in 2004, 52,747 divorces were granted and, of those, 49.8% (26,289) involved children. Both parties were born overseas in 6,904 divorces and in 14,375 divorces at least one party was born overseas.13 Following divorce, either or both of the parents may choose to return to their country of origin where they may have extended family to support them.





  1. It is not surprising, therefore, that a significant number of children whose parents are separated or divorced are affected by a parent’s decision to move, either within Australia or overseas.



  2. The Australian Institute of Family Studies provided some data to Council in their submission. This data informs us about:

      1. the extent to which parents move house after separation

      2. changes in the distance between the homes of former partners, and

      3. the extent to which these changes in distance are related to time since separation.



  1. The Australian Institute of Family Studies’ analysis is reproduced here, although it is important to note that these analyses are preliminary and warrant further investigation.

    Method



  2. Data are drawn from Waves 114 and 2 of the Household Income and Labour Dynamics of Australia (HILDA) survey.15 This survey, funded by the Australian Government through the Department of Family, Community Services and Indigenous Affairs, is a national representative study of income and work patterns.16



  3. To explore patterns of relocation, the two most common post-separation family types – resident mothers (n=411) and non-resident fathers (n=268) – were examined. The participants in this analysis provided information in both waves, and their children continued to live with the mother. The youngest child was under 18 in Wave 2.


  4. Two issues were explored: moving house, and changes in the distance between the homes of former partners. Specifically, in each survey wave, parents were asked to indicate how many kilometres they lived from their children’s other parent: less than 5 km, 5–9, 10–19, 20–49, 50–99, 100–499, 500 km or more, or overseas. For simplicity, the first three categories were combined (less than 20 km).




  5. It is important to note that this analysis is based on the reports of one separated parent. Without couple data, it is not possible to identify changes in the dwellings of both partners of a former relationship.

    Findings



  6. Waves 1 and 2 of the HILDA survey suggest the following key findings.

    Moving house

  • Nearly a quarter of resident mothers and non-resident fathers moved house between 2001 and 2003 (23% and 25% respectively) – that is, each group was equally likely to move.



    Distance apart

  • In 2001, more than half the resident mothers and non-resident fathers reported living within 50 km of their former partner (56–57%). At the same time, a substantial number were living at least 500 km apart or overseas (23% of resident mothers, 22% of non-resident fathers).

  • More specifically, resident mothers and non-resident fathers most commonly reported living less than 20 km from a former partner (41–43%), followed by at least 500 km (17–18%), then 100–499 km (15%) or 20–49 km (13–16%). Only 5 to 7 per cent reported a distance of 50–99 km, and 4–6 per cent reported that their former partner lived overseas.

  • A similar pattern of results emerged for Wave 2.



    Changes in distance (Wave 1 to Wave 2)
  • Seventy-two per cent of resident mothers, and 83 per cent of non-resident fathers, reported no change in the distance between their home and that of their former partner (based on the six categories described above).


  • Twelve per cent of resident mothers, and six per cent of non-resident fathers, reported living closer to their former partner by Wave 2.

  • By contrast, 16 per cent of resident mothers, and 10 per cent of non-resident fathers, reported living further apart from their former partner by Wave 2.

  • In short, while most reported no change in distance category, there was a marginally greater tendency to report living further apart than closer.



    Time since separation and distance



  1. One question that emerges from the above data is to what extent time since separation is related to geographic distance between parents’ households? To answer this question, data from the Institute’s Caring for Children after Parental Separation Project17 was analysed.



  2. These data suggest that recently separated respondents were more likely to report that they lived closer to their former partners than those who had been separated for a longer time. For example, 59 per cent of respondents who had been separated for less than two years reported living within 20 km of their former partner compared to 29 per cent of those who been separated for 13 years or longer. By contrast, 25 per cent of those who had been separated for at least 13 years reported living in excess of 500 km (including overseas) of their former partner compared to 10 per cent of those who had been separated for less than 2 years.




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