Are you aware of any Australian social science research that should be taken into account in the development of the law in Australia?
Four responses52 referred to the Australian Institute of Family Studies report titled Parent–child contact and post-separation parenting arrangements. That report was referred to above in chapter 2 of this report. In summary, the report focuses on the pros and cons of the different post-separation parenting arrangements that exist, including 50/50 care (the rarest arrangement), little or no contact (about 30% of cases), holiday-only contact, daytime-only contact and “standard” or 80/20 contact (the most common form of post-separation parenting arrangement). The report is based on interviews with 54 separated parents. The report stresses that given the small scale of the study, its observations should be taken as “insights” rather than concrete conclusions. It was found that higher levels of contact appeared to be associated with lower levels of inter-parental conflict, lower rates of repartnering, less physical distance between parents’ households, and higher levels of financial resources.53
Ms Donna Cooper argues that the findings of this report “support the contention that the court should make decisions which ensure that children can continue to have a close and meaningful relationship with both parents, where possible. The findings also emphasise the importance of the geographical proximity of the child to both parents where possible”.54
The Aboriginal Legal Service of Western Australia submitted that social science research (including, but not limited to, the Stolen Generations Inquiry55) about the cultural needs of Aboriginal and Torres Strait Islander children, particularly in respect of identity, should be taken into account in the development of Australia’s law.
A couple of submissions referred to research on family violence and abuse, including national, State and Territory crime statistics and research by the Australian Domestic and Family Violence Clearinghouse.
No other specific social science research was identified in the submissions. However, at least two major Australian studies, both funded by the Australian Research Council, are currently underway which will provide greater insight into the impact of relocation on children.
The first of these is being conducted by Dr Juliet Behrens from the Australian National University, with the assistance of Dr Bruce Smyth, of the Australian Institute of Family Studies. The study is focusing on the experiences of parents and children after Family Court decisions about relocation. The project team provides the following synopsis of their research.
The Family Court often decides whether to allow a parent to relocate with children despite opposition from the other parent. A recent parliamentary review of the family law system lamented the lack of research about the aftermath of decisions about children. This project will begin to fill this gap by exploring experiences after relocation decisions. Interviews will be conducted with affected parents and, importantly, children. The resulting analysis will inform future decision-making on relocation after separation. It will also contribute to the debate about the development of a more flexible and responsive family law system.56
The other study is being conducted by Professor Patrick Parkinson, Associate Professor Judy Cashmore and the Honourable Richard Chisholm. It is believed to be the world’s first longitudinal prospective study. The researchers will look at recently resolved cases, and then follow them up over the next two years. They will consider issues such as the way parenting arrangements have developed, psychological measures of the wellbeing of children and parents, and views of the children. It is planned to be an international study, with a New Zealand team conducting a parallel study. Participants from the United Kingdom will also be recruited.
The aims of the study are:
to examine parents’ and children’s experience of the outcomes of relocation disputes in the three to six months after a relocation dispute has been resolved and then about 18 months after the relocation
to examine what factors are associated with the successful adaptation of children to relocation a substantial distance from the non-residence parent, and what factors are associated with problems in adaptation
to determine what patterns of contact develop after relocation
to examine how close to and involved with their non-residence parent the children are after relocation
to examine the effects of a decision not to allow relocation on the relationship between the parents and the relationship of each of them with the children, and
to examine (in the fully litigated cases) the accuracy of predictions made by the courts about the likely consequences for parents and children of permitting or refusing the proposed relocation.57
The findings of these two research projects are likely to be of significant assistance to relocation policy-makers in the future. However, the results of these studies, which have only just begun, are unlikely to be available for a significant time. Therefore it may not be possible to wait for the results of this research before the law is amended. Council instead recommends that, if changes are made to relocation law as a result of the present report, those changes should be reviewed when the results of these two important studies become available.
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.
The impact of relocation on parents
It is not only children who are affected by a decision to relocate. Both parents also have a significant interest in the outcome of the court’s decision. The current approach in Australia is to treat the child’s best interests as “the paramount consideration, but not the sole consideration”.58 The importance of weighing other factors affecting the parents is acknowledged. Although he was in dissent in U v U, Kirby J’s comments on the importance of considering parents’ needs are apposite:
The economic, cultural and psychological welfare of the parents is also to be considered, because they are human beings and citizens too and because it is accepted that their welfare impacts upon the welfare of the child.59
Two issues affecting parents considered below are the potential impact on their freedom of movement by a relocation order, and the nature of the obligations imposed on them by parenting orders.
Like many other areas of family law, the law governing relocation does not have gender neutral impacts. There is clear evidence that the majority of residence parents are mothers. The Australian Bureau of Statistics Family Characteristics Survey in 2003 found:
[t]here were 1.1 million children aged 0–17 years in 2003 (23% of all children in this age group) who had a natural parent living elsewhere. Of these children, 76% lived in one parent families, 13% in step families and 9% in blended families. Children were more likely to live with their mother than their father after parents separate. The survey found that in 84% of cases it was the father who was the natural parent living elsewhere.60
It is generally the mother whose proposed relocation is challenged in court. For example, in the empirical study by Easteal, Behrens and Young of relocation decisions made in Canberra and Perth between July 1997 and December 1998, of the 38 cases that proceeded to judgment, 36 of the movers were women.61 In 63 of the 70 applications (90%) in the Family Court of Western Australia in 2000–06, the mother was the residence parent.62
Given it is generally the mother whose movement is scrutinised, Behrens writes that “restrictions on relocation operate unfairly against the person who is likely to be providing the majority of care to a child. In doing so, they compound the social and economic disadvantages that accompany the provision of care, particularly where the caregiver is a woman”.63
Some submissions suggested that the law governing relocation may contravene a number of international human rights instruments to which Australia is a signatory. Women’s Legal Services Australia outline the relevant conventions as follows:64
These include Article 26 of the International Covenant on Civil and Political Rights (“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law”) and Article 2 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (“(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.”) Article 1 of this latter Convention explicitly recognises that “discrimination” against women may take the form of laws which appear ostensibly not to discriminate between the sexes, but which because of the differences between men and women’s lives, have the effect of discriminating against women.65
An alternative view which Council considered is that restrictions on relocation may in fact conform with certain rights protected in these international conventions. For example, recognition and protection of the family unit is articulated in Article 23 of the International Convention on Civil and Political Rights. Article 23(4) requires States Parties to the convention to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children”. Similarly, Article 10(1) of the International Convention on Economic, Social and Cultural Rights states: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children”.
The rights of parents must also be balanced against the rights of children as provided, for example, in the United Nations’ Convention on the Rights of the Child, which Australia has ratified. Article 7 of that convention states that the child shall have “as far as possible, the right to know and be cared for by his or her parents”. Particularly relevant to relocation is Article 9(1), which states that “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence”.
Freedom of movement
One potential effect of a court order is that the mother’s freedom of movement, as provided for by Australian law, is restricted.66 Section 92 of the Constitution provides Australians with a right of freedom of movement, as follows.
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
Whilst it is not immediately obvious that this section includes movement of people, the High Court confirmed that it does in the decision of Cole v Whitfield, when they said “[a] constitutional guarantee of freedom of interstate intercourse, if it is to have substantial content, extends to a guarantee of personal freedom ‘to pass to and fro among the States without burden, hindrance or restriction’: Gratwick v Johnson”.67
This section has been established as only applying to domestic movement.68
Freedom of movement was discussed in U v U. The majority held simply that “whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”.69 This has led one commentator to conclude that the right of freedom of movement and other reasons for wanting to relocate are to be given “no particular weight”.70
Kirby J (dissenting) outlined his agreement with the English approach that “where the custodial parent herself…has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children”. This hesitation allows for consideration of “factors affecting the carer’s life, such as their freedom of movement, association, employment and personal relationships”.71 This is not an approach that has been accepted into Australian law.
A few submissions commented on the freedom of movement issue. Mr Colin Anderson argued in his submission that “[while] in general a person’s freedom to move needs no justification, when people have children they have an obligation to put them first, not themselves”. Similarly, Mr John Bottoms submitted that freedom of movement should be secondary to the child’s right to interact with both parents.
The Association of Children’s Welfare Agencies agreed that the judiciary should give some thought to the impact of restriction on freedom of movement when considering relocation applications, however the Association was “unable to say how it should be weighted against the best interests of the child, which are the paramount consideration”.72
Women’s Legal Services Australia submitted that the gendered impact of any law restricting freedom of movement must be borne in mind. They write “women’s care of and connection to their children means that the courts can demand that they sacrifice their freedom of movement for their children whereas the same expectation is not made of men”.73 Further, they make the point that restricting the movement of primary caregivers will have an inevitable impact on children. Dawn House Women and Children’s Shelter’s submission also raises the effect on the child of restricting a custodial parent’s movement.
The Family Law Council believes that freedom of movement is an important and relevant factor to consider, but only after the child’s best interests have been ascertained. The issue of freedom of movement is revisited in chapter 6, where Council considers how parents’ needs and interests should be accommodated when relocation decisions are made.
Non-resident parents’ obligations
As the figures quoted earlier from the Family Characteristics Survey show, it is generally fathers who are non-resident parents. Also noted above was the fact that most relocation matters are prompted by a residence mother’s decision to relocate with the child. But what happens when a non-resident father wishes to relocate? Must he also obtain permission to do so? This raises the question whether his contact orders are mandatory or permissive. If a court order states that contact is to occur with the non-resident parent at particular times, does the non-resident parent have to exercise contact at those particular times?
In B and B the Full Court said:
That issue would ordinarily arise when a contact parent seeks to relocate and applied to the Court to vary the existing contact order. If the Court refused to do so because it considered that it would be contrary to the children’s best interests to have contact reduced, it may do so by refusing that application, and this may place the contact parent under an obligation to adhere to the existing order. It may also arise in other ways – for example, an application by the residence parent for contact orders to be made in particular terms which may be inconsistent with relocation by the contact parent. The use of injunctions is much less clear because it would raise the issue whether the best interests of the children is the paramount consideration in such applications: see s 68B.
In any of those eventualities it is possible that the failure of the contact parent to comply with those orders may amount to a breach of the orders in respect of which proceedings by way of enforcement could be brought.74
This passage indicates that it is possible for a contact order to create an obligation on the non-resident parent to exercise contact. The passage is obiter, and there appear to be no decisions on the point. Typically contact orders are phrased in a way that does not precisely specify whether the non-resident parent has such an obligation, and different views have been expressed on the matter.75 Dickey argued that contact orders are “permissive”, suggesting that they create no such duty, while Monaghan argued the contrary.76
Council is not aware of a successful contravention application to have been made on the basis that the non-resident parent failed to exercise contact as provided in the contact order. It is likely that two beliefs contribute to this situation: the belief that contact orders create no such obligation and the belief that in practice it would be futile to seek to require an unwilling parent to exercise contact. Although the first belief appears contrary to the dicta in B and B, the second belief has some basis in dicta from the Full Court. In B and B the Full Court considered that even if an application were to be brought by a residence parent to enforce contact, they “think it unlikely that in the exercise of discretion a court would do so”.77
To similar effect, in Schorel v Elms, the Full Court said:
you cannot force a parent to see a child that they do not want to see. The appropriate remedy for the consistent failure of a parent to avail themselves of the benefits of a contact order is not to be found in seeking to punish the parent or force the contact upon them but rather to relieve the residence parent of non compliance with the order by discharging, suspending or varying the order.78
Monaghan, however, points out that in B and B the Full Court indicated that there might be exceptions, and in Schorel v Elms the Full Court was considering “persistent failure”, and argues that enforcement of the non-resident parent’s obligation might be beneficial in some situations involving occasional failure to exercise contact.79
The discussion paper asked the following consultation question.
Do you think that the Family Law Act should be amended to provide that it is necessary for a contact parent to apply to a court to amend the contact orders if the residence parent opposes the contact parent’s relocation?
The Association of Children’s Welfare Agencies suggests that residence parents should not be held in breach of their parenting order if compliance with the order is impossible due to the non-resident parent’s relocation. It suggests that, in such cases, the order could “automatically” be varied by the court on the basis of a parent’s submission, without significant legal costs being incurred.80
The Castan Centre for Human Rights Law was opposed to the idea of an amendment requiring non-resident parents to seek a change in parenting orders when they wish to relocate. The Centre’s submission argues that it “is highly questionable whether the court should impose on a parent who, for various reasons, may not want to or is unable to have contact with his or her child the requirement to do so. It cannot be regarded as being in the child’s best interests to force an unwilling parent to exercise contact”.81 In addition, they suggest such a requirement would be almost impossible to enforce and result in an increase in litigation.
The Murray Mallee Community Legal Service was also opposed to any such amendment, noting that requiring a non-resident parent to access the court whenever their relocation is opposed by the residence parent would create enormous difficulties for non resident parents from disadvantaged backgrounds who do not have the resources or skills necessary to do this.82
Mrs Kay Hull MP believes that a non resident parent should not be able to relocate if this will create difficulty for a non resident child to have the same meaningful contact with that non-resident parent,83 which would negate the need to apply to vary the contact orders. The Department of Family and Community Services and Indigenous Affairs suggested that “a resident parent should not be deemed to be in breach of existing contact orders where travel for changeover becomes unreasonable following a contact parent’s relocation”.84
The Shared Parenting Council of Australia, Dawn House Women and Children’s Shelter, National Legal Aid and the ACT Law Society agree that the Family Law Act should be amended to oblige parents to amend their contact orders. Centacare Sydney agreed that non-resident parents ought to seek permission to relocate, however prior to lodging an application there should be an obligation on both parties “to attempt to resolve the change to the contact arrangements through a primary dispute resolution method”.85
Ms Donna Cooper argues that the presumption of equal shared parental responsibility being introduced into the Family Law Act requires both parents to be involved in making joint decisions on major long-term issues. She suggests it “is clear from draft subsection 4(1) that a major long-term issue involves a move which makes it ‘significantly more difficult for a child to spend time with the other parent’”.86 The Law Society of New South Wales equally thought that in light of the amendments in the Shared Parental Responsibility Act “both parents should have the same responsibility to seek agreement or otherwise obtain orders varying the arrangements for spending time”.87
The majority of the submissions are in favour of imposing an obligation on non resident parents who wish to relocate to seek to vary their parenting orders. It should also be noted that subsection 60CC(4) provides that a court can take into account the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, to spend time with the child. It follows that failure to spend time with a child pursuant to court orders is a reason to relieve the other parent of the obligation, also referred to in subsection (4), to facilitate that contact.
Council is of the view that there should be a stronger emphasis on the obligations of both parents to maintain a meaningful relationship with their child. There should be a cultural shift in attitude, to reinforce that repeated breaches of parenting orders by non resident parents are just as serious as repeated breaches by residence parents. This view was strongly supported by the submissions received by Council.
Council believes that if parents are serious about seeking a parenting order, they should abide by that order, whatever the type of obligation it imposes. If parents wish to have a more flexible arrangement, they should not seek a parenting order from the court, but instead formulate their own parenting plan. Council is persuaded by the view that parenting orders should be considered mandatory, not permissive. Consequences should flow from breaches of parenting orders.
Council proposes that provisions in the Family Law Act could be amended to reinforce the idea of orders imposing obligations and it would be consistent with the government’s reforms in the Shared Parental Responsibility Act to do so. Specifically, sections 65N and 70NAE could be amended towards this end.
Section 65N specifies the general obligations created by a contact order. Council proposes that a new subsection 65N(2) be inserted in the Act 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”. [Consequently, the current subsection (2) should become subsection (3).]
Section 70NAE, enacted by the Shared Parental Responsibility Act, specifies what reasonable excuses are for contravening an order. Council proposes that a further subsection be added to section 70NAE 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”. In other words, the fact that a non-resident parent has repeatedly failed to turn up at arranged times and exercise contact will provide the residence parent with a reasonable excuse for not complying with the contact order. In effect, the orders for contact will no longer be enforceable against the resident parent.
These amendments will create more serious consequences for parents who breach contact orders. They will not affect a parent’s freedom of movement. Nor will they oblige a parent to exercise contact with the child if he or she is unwilling to do so. It is recognised that forcing an unwilling parent to have contact with a child is undesirable. However, these changes will limit a parent’s ability to enforce a parenting order against the other parent if they themselves have breached that order.
Council considered that such a change may result in an increase in litigation. However, as the compulsory dispute resolution provisions are phased in, most contravention order applicants will go to a Family Relationship Centre before going to court. Those who do go to court are likely to be ordered to attend a post-separation parenting order program (for less serious contraventions without a reasonable excuse) and this will provide an opportunity to get professional assistance.
A child is adversely affected no matter which parent breaches the parenting order. In the Family Law Council’s opinion, breaches by either party should be equally discouraged.
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”.
2. 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”.
In the discussion paper it was noted that Article 2 of the American Academy of Matrimonial Lawyers’ Model Relocation Act contains provisions requiring both adults with custody or visitation rights to give notice to the other party about their intended relocation in a way that is almost identical.88 This could be additional to a requirement to seeking a variation of the orders.
Some submissions recommended a notice requirement. The Association of Children’s Welfare Agencies state that “it seems reasonable that parents should advise each other formally of proposed relocation, unless it is necessary for the safety of either parent or the child for that information not to be provided”. The Shared Parenting Council of Australia wrote “common courtesy would suggest that advance notice should be provided in writing between the parents for practical reasons and so that parents have the peace of mind as to where it is proposed their children will reside, no matter how much time they would be spending in either parent’s care and residence”.89
Council agrees that it is desirable for a parent wishing to relocate to let the other parent know. Council understands it is best practice for lawyers to advise their clients to notify the other parent of their intention to move.
This issue is dealt with by the Shared Parental Responsibility Act. A key change in Schedule 1 of the Act is a presumption of equal shared parental responsibility when making parenting orders (section 61DA). The presumption will not apply in certain circumstances. The effect of an order that provides for shared parental responsibility will be that decisions about a “major long term issue” are required to be made jointly (section 65DAC). “Major long term issue” is defined as including (among other things) “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent” (inserted into subsection 4(1)).
Therefore, Council does not consider that any additional legislative provision is required.
The impact of relocation on others
A proposed relocation brings to the forefront all the social and economic connections people have, which may be with more than one place. It is not only the interests of the parent who wants to move which have to be weighed in the balance with the child’s interests. It could also be the interests of grandparents and other extended family members, the residence parent’s new partner or their children from another relationship.
As Family Services Australia put it in their submission, “children are embedded in a system that includes nuclear and extended family members, friends, school communities and sporting and social groups. Members of these sub-systems are also affected when a child moves to a new location”.90
To take just one example – new partners – anecdotal evidence supports the contention that their interests are often an issue in relocation matters. For example, data was provided to the Council regarding relocation cases heard between 2000 and 2006 in the Family Court of Western Australia. Of these 70 relocation matters, in at least 26 cases (37%) the involvement of a new partner was a factor.91 The ACT Women’s Legal Centre, which conducted a survey of all the relocation matters it dealt with in 2005, indicates that 12% of the relocation matters it saw were because a new partner needed to relocate.92
If we bring into play the possibility that the non-resident parent might move to be close again to the residence parent following her relocation, as U v U indicates, then we have another set of interests to take into account. His employer, and its interests in his services in the present location, his new partner, her children and her employer’s interests, and the future of their relationship if he decides to move but she cannot. There may also be financial issues, since relocation from, say, Kalgoorlie to Perth raises a whole lot of major financial issues in being able to enter the housing market in Perth on the basis of the proceeds of sale from the property in Kalgoorlie. A move from an existing employer to a new one may also risk loss of seniority and prospects for advancement. A relevant factor, therefore, is whether it is reasonable to expect the non-resident parent to sacrifice his economic interests to support the relocation of the other parent.
A final factor is whether relocation could affect the interests of other children. For example, if the question is raised whether the non-resident parent should relocate with the residence parent, then it may be necessary also to consider his contact with a child from a previous relationship where that contact might be affected by his relocation.
Below is a discussion of how relocation can affect the interests of other children, as well as the interests of new partners, grandparents and other relatives.
In A v A: Relocation Approach the impact of relocation on contact with a half sibling was considered. The mother proposed to relocate to Portugal with the child of the marriage, M. She had another child, C, from a previous marriage. At the time of the trial, C was living with her father in Portugal. The mother had remarried. The Full Court of the Family Court held that the trial judge had placed too much emphasis on M’s contact with her father in Sydney. The trial judge had not given sufficient consideration to “the child’s relationship and prospects for contact with C”93 under subsection 68F(2).94
The court’s willingness to consider the interests of other children has also been demonstrated in non-relocation matters. For example, in MQ and A,95 an international child abduction matter, the half-sister (A) of the abducted child (S) was a party to proceedings appealing the decision to return the child to the United States. One of the issues considered by the court was whether the half-sister’s application for contact with the child brought into play the paramountcy provisions of section 65E of the Family Law Act, so as to require the court to give those matters paramountcy over the orders that would require the return of the child to the United States. The Full Court noted that:
there may be circumstances in which a sibling can bring an application for a parenting order and accordingly [the Full Court does] not wish to be seen to endorse the view…that [the half-sister] could not be a person concerned with [the child’s] care, welfare and development.96
However, the court went on to note that the paramountcy principle as it applied to the applicant sister must be subservient to the paramountcy principle as it applied to the child the subject of the proceedings. Therefore, “as S is the subject of the orders sought in A’s application any orders made must focus on S’s best interests rather than A’s if there is any conflict in those interests”.97 The half-sister’s application was refused.
Repartnering is often a catalyst for the decision to relocate, and the interests of the new partner may sometimes be a relevant factor in deciding a relocation case.
In Bolitho and Cohen98the children’s relationship with a new partner was a relevant factor. The father was permitted to relocate to Japan with his children, where they would live with him and his new wife. He had employment in Japan as a wine marketing consultant.99 One of the factors that was relevant to the decision was that the children had “a strong and comfortable bond with the father and the new wife”.100
The decision in ZH & YH and The Child Representative101 exemplifies the complexity of children’s contact with their extended family and a parent’s new partner. At the time of the application the parties were all living in Tasmania. The children were residing with their mother and her new husband. The mother wished to relocate with the children to the United States because her new husband was a citizen of the United States and they wanted to live with his mother.
The mother did not have any extended family in Tasmania. She had developed “a warm relationship” with her husband’s extended family in Sharon, Massachusetts.102 The father’s extended family and the children’s friends were in Tasmania. After balancing these factors and the children’s wishes, Nicholson CJ concluded in relation to “the likely effect of separation on the children from their parents or other significant persons”, that the children should remain in Tasmania.103
Grandparents and other relatives
The important role grandparents can play in their grandchildren’s lives was recognised in the Every picture tells a story report. The House of Representatives Standing Committee on Family and Community Affairs recommended that the Commonwealth Government:
ensure contact with grandparents and extended family members are considered by parents when developing their parenting plan, and if in the best interests of the child, make specific plans for contact with those individuals in the parenting plan.104
The Shared Parental Responsibility Act makes specific provision for the interests of grandparents when determining a child’s best interests. Subparagraph 60CC(3)(d)(ii) provides that an additional consideration in determining a child’s best interests is the likely effect on the child of any separation from “any grandparent or other relative of the child…with whom he or she has been living”.
Subparagraph 60CC(3)(f)(ii) provides that an additional consideration in determining a child’s best interests is the capacity of “any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs”.
Another amendment of relevance to grandparents is in the Objects provision to Part VII of the Act. Paragraph 60B(2)(b) states that one of the principles underlying the objects of the Part is that “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.
A new definition of “relative” has been inserted into the general definitions in subsection 4(1) of the Act. It includes step-parents, siblings, half-siblings, grandparents, uncles, aunts, nephews, nieces and cousins. This broad definition is intended to ensure the court takes account of other significant relationships that may be of benefit to a child in making children’s orders.
Taking account of other peoples’ interests
The discussion paper posed the following consultation question:
Please address how you think the law should take account of the interests of other people affected by relocation decisions.
A number of submissions expressed a desire for greater emphasis to be given to other people affected by a relocation. For example, Ms Donna Cooper argues that “due to the importance of the child maintaining a relationship with other significant persons such as grandparents…such a consideration should be a mandatory consideration for the court in considering whether to permit the relocation”.105 The Murray Mallee Community Legal Service suggests that there should be a specified list of factors to consider in relocation cases. One of these factors should be a requirement to consider the interests of any people who are likely to be significantly affected by a relocation decision. The Shared Parenting Council of Australia takes this further and submits that “relocation that seriously delimits the involvement of grandparents and significant others should not be allowed to proceed”.106
The Non-Custodial Parents Party’s submission argues that the best interests of the child should be a primary but not the paramount consideration, and that “the rights of the parents and other applicants in the matter [should] stand alongside those of the child”.107
The law currently allows consideration to be had of relationships between the child and their grandparents or “other people significant to their care, welfare and development” when determining what decision is in the child’s best interests.108 The law’s focus is on the child’s interest in having a relationship with others rather than other people’s right to a relationship with the child. As already outlined, the Shared Parental Responsibility Act has added more references to grandparents and other relatives.
Council believes that the current approach (combined with the amendments in the Shared Parental Responsibility Act) is sufficient to take account of the interests of others. This opinion was generally supported by the submissions. The Castan Centre for Human Rights Law, for example, argues that the rights of grandparents and extended family members are well established and are referred to in the new Act.109 That submission asks: “How many people’s interests are to be permitted to have an impact on the child’s best interests? Where do we draw the line?”
The submission from Centacare Sydney also acknowledged that people who are significant to the child’s care, welfare and development are captured by provisions in the Family Law Act and the Shared Parental Responsibility Act. The Law Society of New South Wales and the ACT Law Society agreed. The Chief Justice of the Family Court of Australia noted that “any further amendment to the Act in this area would be superfluous and may in fact encourage unnecessary litigation”.110
A confidential submission expressed the need for the extended family on both sides to be treated equally. Given the difficulty for the law to achieve this goal, the author concludes that the focus should remain on the nuclear family. The submission from the ACT Department of Education “would support less emphasis on, but due consideration of the interest of other people affected by the relocation. The important focus must be on the value the child places on their relationship with significant others”.
Therefore, in relation to this aspect of the law on relocation, Council believes that no change is necessary. The interests of other people affected by the relocation are already captured by the Family Law Act, including the amendments contained in the Shared Parental Responsibility Act. There are no further amendments to the law required for protecting the child’s interest in maintaining these important relationships with other people.
The previous chapter referred to a number of judgments which considered the relevance of parents’ and other people’s interests when making relocation decisions. This chapter provides a fuller discussion of the current law on relocation in Australia. Recent changes to the Family Law Act which may affect relocation decision-making are also described. These are the amendments in the Shared Parental Responsibility Act.