Part VII of the Family Law Act concerns children. It begins by setting out the object and principles underlying this Part (section 60B). Relevant principles for the purposes of relocation cases are that “children have the right to know and be cared for by both their parents” and “children have a right of contact, on a regular basis, with both their parents”.
Pursuant to section 65D of the Family Law Act, the court has the power to make “such a parenting order as it thinks proper”. A parenting order sets out where the child will live (residence) and the contact the child is to have with the non-resident parent. Therefore if one parent wishes to relocate, they may seek to vary the parenting order under subsection 65D(2) to allow for this, especially if the relocation will impact on the contact arrangements.
The child’s best interests are the paramount consideration when the court is deciding whether to make a particular parenting order (section 65E). There are a number of matters which the court must consider when determining what is in the child’s best interests. Until 1 July 2006, these are set out in subsection 68F(2) as follows:
(a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
(b) the nature of the relationship of the child with each of the child’s parents and with other persons;
(c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person, with whom he or she has been living;
(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f) the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards, or may affect, another person;
(i) any family violence involving the child or a member of the child’s family;
(j) any family violence order that applies to the child or a member of the child’s family;
(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l) any other fact or circumstance that the court thinks is relevant.
Amendments to sections 65E, 68F(2) and 60B
The Shared Parental Responsibility Act contains numerous amendments which may have an impact on the way relocation decisions are made.
The content of section 65E (which provides that the best interests of the child are the paramount consideration) is not changed by the Act. The section has been moved so that it follows the objects provision and therefore has become section 60CA.
Subsection 68F(2) (factors to consider when determining a child’s best interests) has been moved, becoming section 60CC. The section has been amended so that the court must consider “primary considerations” and “additional considerations”, as follows.
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) 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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider 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, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The objects provision (s 60B) has also been amended by the Shared Parental Responsibility Act. The section number is unchanged. The new section is as follows.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) 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); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
“Communicating” with a child (referred to in paragraph 2(b) above) would presumably not be limited to face to face communication. 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”.111
In new subsection 63C(2), which sets out what a parenting plan might deal with, paragraph (e) refers to “the communication a child is to have with another person or other persons”. For this purpose, communication includes (but is not limited to) “communication by (a) letter; and (b) telephone, email or any other electronic means”.
The Shared Parenting Council of Australia submits that “virtual communication” should not be seen as a substitute for physical contact. In contrast, Shefts has written that:
[i]n relocation cases, a virtual visit is the next best thing to being there so that where the court determines that it is in the best interests of the child to move with a parent, virtual visitation is far superior to not communicating or being involved with the children at all.112
Council is of the view that communication over the telephone and internet does have a place, but is certainly not sufficient for the child to maintain a relationship with their parent.
Other relevant amendments
A key change in Schedule 1 of the Shared Parental Responsibility Act is a presumption of equal shared parental responsibility when making parenting orders (section 61DA). The presumption will not apply in certain circumstances. It is proposed that 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)).
Further, where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the court must consider the child spending equal time or substantial and significant time with each parent in certain circumstances (section 65DAA).
In this context the Shared Parental Responsibility Act seems to presume that face to face contact is required.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
At the time of writing this report, the Shared Parental Responsibility Act had been passed by both Houses of Parliament. It is anticipated that the new law will commence on 1 July 2006.
Defining “best interests of the child”
The Family Law Act does not provide a definition of “best interests of the child”. As outlined above, the Act sets out matters the court must consider when determining what is in a child’s best interests. However, while there are matters that may or must be taken into account in considering a child’s best interests in different jurisdictions, definition of the concept itself is seldom attempted. This may be due to the complexity of the concept and the fact that it is not strictly a legal concept, even though it is often a consideration in legal proceedings and appears in different legislation. It is a concept which is difficult to define as it necessarily varies from child to child, even within one family, and it is not constant over time or circumstance even when applied to a particular child.
Section 5 of New Zealand’s Care of Children Act 2004 provides some principles which may be useful in spelling out what is best for children. These principles are set out below at 5.27.
The discussion paper posed the following consultation question in relation to the best interests principle:
Please consider formulating a definition of the “best interests of the child”.
Most submissions that addressed this question stated it is not necessary to define what “best interests of the child” means, or that, if it is desirable, it is too difficult.
Of those few submissions that did think a definition of this concept was desirable, there was no agreement about the formulation. The ACT Department of Education, for example, suggested: “[a]nything which impedes upon the rights of the child as stated in the United Nations’ Declaration of the Rights of the Child is against the ‘best interests of the child’”. Other submissions that advocated a definition took a more checklist approach. For example, Ms Donna Cooper, a lecturer at the Queensland University of Technology, proposed a list of mandatory factors the court could consider when determining best interests in the context of relocation and Dawn House Women and Children’s Shelter referred to the checklist in New Zealand’s Care of Children Act 2004.
However, most submissions did not believe a definition would be helpful or appropriate, given the widely differing interests of individual children. The Castan Centre for Human Rights Law wrote that the “common denominator of what constitutes a child’s best interests cannot be restrictive”. The Human Rights and Equal Opportunity Commission wrote:
There is little international jurisprudence to assist in the interpretation of what amounts to the “best interests of the child” and due to the plethora of circumstances that arise, it will be extremely difficult to develop a precise definition…Further, given the wide scope of issues and circumstances that may arise in each individual case, the Commission is concerned that defining the “best interests of the child” may restrict the ambit of the term and limit the important emphasis on examining the individual circumstances of each and every child.
Quite a few submissions suggested that the factors set out in sections 60B and 68F(2) of the Family Law Act are adequate.113 Those submissions were of the view that having a set of guiding principles to determine best interests, as the current Act does, is more appropriate than having a single definition.
The Chief Justice of the Family Court of Australia commented that the concept is “deliberately open-ended” and referred to Justice Carmody’s recent observations.
Best interests are values, not facts, they are not amenable to scientific demonstrations or conclusive proof. The same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. There is not always only one right answer. Sometimes, the least worst situation may be the best available. Most cases are finely balanced with the only option being a choice between two or more imperfect alternatives. Predictions, perceptions, assumptions and even intuition and guesswork can all play a part in search of the best interests solution.114
Other jurisdictions have adopted a similar approach. For example, the submission from the Victorian Department of Human Services alerted Council to the Victorian Government’s new legislative framework for child, youth and family services in Victoria. Best interest principles have been introduced into the Children, Youth and Families Act 2005 (Vic) to guide community service organisations, child protection and the Children’s Court to focus on the whole context surrounding the child or young person to ensure the best possible decisions can be made. Rather than providing a definition of “best interests”, the Victorian legislation provides a set of principles the court is to consider in determining whether a decision is in the 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. Therefore, 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”. The current framework of factors to consider in sections 60B and 60CC are sufficient for determining whether a decision is in the child’s best interests.
Case law principles guiding relocation decisions
Prior to the Family Law Amendment Act 1995 (the Reform Act) the welfare of the child was the paramount consideration, but the following principles, summarised succinctly by Kaspiew, were also relevant:
The Full Court in In the Marriage of Holmes set out a tripartite test listing factors to be taken into consideration in such cases.115
First, is the application to remove the child from their previous environment bona fide? A negative answer to this would mean the inquiry should proceed no further.
Second, could the court be reasonably satisfied that the custodial parent would comply with access and other orders designed to continue the relationship between the children and the non-custodian? A negative or uncertain answer to this question would not be decisive but would be a “weighty” factor against the application.
Third, what would be the general effect of either an affirmative or negative response to the application? Factors to be taken into account at this stage were: how the children would be affected by less contact with the non custodial parent, disadvantages to the welfare of the children in the proposed new environment and the genuine wishes of the custodial parent.
In In the Marriage of Fragomeli the court enunciated a further principle which has been seen as important in this area; that “a custodian should be left to order his or her own life without interference from the other parent or from the court, so long as he or she does what may be reasonably expected to be done by him or her for the child in all the circumstances”.116
In the decision in B and B,117 the Full Court of the Family Court interpreted the effect of the 1995 amendments, including the new objects provisions. The case involved an application by the mother (the residence parent of the two daughters) to relocate from north Queensland to Victoria to marry a man who had business interests in Victoria and his two children living with him. At trial, Jordan J decided in favour of the mother’s application. On appeal the father and the Attorney General submitted that the mother could move as long as she did not take the children with her. The Full Court recognised that this was “no choice”, commenting that:
It would be untenable to suggest, as it was in this case, that a parent who had been the primary carer of the children during the five years of the marriage and in the 6½ years since separation would leave her children and relocate elsewhere. That is true of most relocation cases.118
The Full Court dismissed the father’s appeal and the mother was allowed to relocate. The court made it clear that relocation cases are to be dealt with in the same way as other proceedings under Part VII of the Family Law Act. They outlined the effect of the Reform Act on the inter-relationship between sections 60B, 65E and 68F(2). A judge should regard section 65E as the paramount consideration, then go through each of the factors in subsection 68F(2) and discuss the weight to be given to each. This should be followed by discussing the factors in section 60B “which appear relevant or may guide that exercise”.119
Provided this approach is followed, the three-tiered test from the pre-Reform Act decision in In the Marriage of Holmes was held to have ongoing relevance. Other factors that may be considered in individual cases include:
the degree and quality of the existing relationship between the children and the residence parent
the distance and permanency of the proposed change
the age and wishes of the children
the feasibility and costs of travel, and
alternate forms of contact.120
AMS v AIF
The next important decision in the development of the law on relocation was the High Court’s decision in AMS v AIF.121 The child was born when the parties were living in Darwin in the Northern Territory. After they had separated, the mother was the residence parent and the father had regular contact with the child. They both moved to Perth in Western Australia, but a year later the mother decided she wanted to move back to Darwin.122
The Family Court of Western Australia issued an injunction restraining the mother from leaving Perth. Holden J held that “[f]rom the point of view of the welfare of the child it seems to me that he has been in as ideal a situation as he could possibly be in given that his parents do not live together. It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary”.123
The High Court held (Callinan J dissenting), in overturning Holden J, that it was erroneous to have required the mother to demonstrate “compelling reasons” for wanting to relocate. Hayne J clearly explains that to focus on the mother’s reasons for wanting to move distracts from the proper focus of inquiry, which should be what is better for the child.124 The best interests of the child must be the paramount consideration in relocation cases, but is not the “sole” or “only” consideration.125 The interests of the parents may be relevant to the best interests of the child, depending on the case.126 Kirby J stated that in the event that there is a conflict, the child’s interests take priority.127