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3 U v U (2002) 191 ALR 289.

4 See for example D and SV (2003) FLC ¶93-137 which involved a move from Vermont South (in Melbourne’s eastern suburbs) to Drysdale (near Geelong) in Victoria. In that decision, the Full Court made the following comments on whether relocation principles should apply to a relatively short move.

“While it was not a ground of appeal, we raised with Counsel for the respondent the issue of whether in the context of this relatively short move, the relocation principles in those cases should apply to this case. It was her submission that any move of residence that requires a significant change in existing parenting arrangements can bring the principles discussed in those cases into play. While we did not hear argument contesting that proposition, it seems to us to be an approach that may be open in some cases. However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements”: per Nicholson CJ, Kay and Monteith JJ at [37].



5 See for example VG & M [2005] FamCA 1015 (27/10/05).

6 House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 1 at 22.

7 Council is aware that the Shared Parental Responsibility Act will change the existing terminology.


8 G. Watts ‘Can we go or must we stay? Being able to relocate with the children’ (2002) 40(10) Law Society Journal 66 at 66.

9 Recent reported cases on relocation in Australia include: A v A: Relocation approach [2000] FamCA 751; U v U (2002) 191 ALR 289; ZN and YH and the Child Representative [2002] FamCA 453; CCC and MJR [2005] FamCA 784; Bolitho and Cohen (2005) FLC ¶93-224; P and P and Children’s Representative [2005] FamCA 1032; S and D [2005] FamCA 1035; VG and M [2005] FamCA 1015; W and R [2006] FamCA 25. Case law is discussed in more detail in chapter 4 of this report.

10 Australian Bureau of Statistics, 3412.0 Migration, Australia, 2004–05.

11 Ibid.

12 Australian Bureau of Statistics, 1301.0 Yearbook Australia 2006 (Chapter 5 – Population).

13 Australian Bureau of Statistics, 3307.0.55.001 Divorces, Australia, 11/11/2005.

14 Each set of data collected is called a “wave”. HILDA collects data annually.

15 HILDA is managed by the Melbourne Institute of Applied Economic and Social Research, University of Melbourne (the lead agency), in collaboration with the Australian Institute of Family Studies and the Australian Council for Educational Research.


16 It should be noted that 13 per cent of respondents who were interviewed in Wave 1 did not participate in Wave 2. This sample loss similarly applied to the samples analysed here (resident mothers, non resident fathers).

17 This recent Australian study comprised 971 separated parents with at least one child under 18 years. Parents were interviewed by telephone for, on average, 45 minutes about parent–child contact and child support.

18 P. Easteal, J. Behrens and L. Young, ‘Relocation decisions in Canberra and Perth: a blurry snapshot’ (2000) 14 Australian Journal of Family Law 234.

19 Ibid at 240.

20 Ibid at 241.

21 The Hon Justice Carolyn Martin, personal communication, 30 March 2006.

22 Calculated based on figures provided by Martin, ibid.

23 B. Smyth (ed) Parent–child contact and post-separation parenting arrangements, Research Report No 9 (Australian Institute of Family Studies: Melbourne, 2004) at 4–5.

24 Ibid at 121.

25 Ibid at 120.


26 J. Roebuck, ‘U v U: A chauvinistic approach to relocation?’ (2003) 17 Australian Journal of Family Law 208 at 208.

27 Paskandy v Paskandy (1999) FLC ¶92-878 at 86,453. This concept is explained fully in chapter 4 of this report.

28 D and SV (2003) FLC ¶93-137. See note 4 above.

29 There is more than one coach company operating services between Canberra and Sydney, but one was thought to be sufficient as an example for the purposes of this hypothetical.

30 The Family Law Council recognises that the challenges will be greater in more remote areas of Australia where there may be no public transport, where at certain times of the year people get flooded in or the only way to reach the area is to fly in on a private aircraft.

31 The Act is discussed in more detail in chapter 4 of this paper.

32 Family Law Council, Relocation Discussion Paper at [2.11].

33 This concept is explained fully in chapter 4 of this paper.

34 Unreported, Family Court of Australia [2001] Fam CA 28 (8 February 2001).

35 Submission from the Chief Justice, Family Court of Australia at 8.

36 Family Law Council, Relocation Discussion Paper at [2.11].


37 This recommendation is discussed in more detail in chapter 6 of the report.

38 Submission from Family Services Australia at 3.

39 K. Waldron, ‘A review of social science research on post-divorce relocation’ (2005) 19 Journal of the American Academy of Matrimonial Lawyers 337 at 342

40 R. Warshak, ‘Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited’ (2000) 34 Family Law Quarterly 1 at 84.

41 In re Marriage of Burgess (1996) 13 Cal 4th 25.

42 J. Wallerstein, Amica Curia Brief of Dr. Judith S. Wallerstein, PhD, filed in Cause No. S046116. This brief was adapted into a journal article – J. Wallerstein & T. Tanke, ‘To move or not to move: psychological and legal considerations in the relocation of children following divorce’ (1996) 30(2) Family Law Quarterly 305.

43 Ibid at 311.

44 Ibid at 312.

45 R. Warshak, S. Braver, J. Kelly, J. Bray et al, Amici Curiae Brief on Behalf of Lamusga Children, filed in Cause No. S107355.


46 In re Marriage of Lamusga (2002) Unpub. For the Supreme Court decision, see LaMusga v. LaMusga, 32 Cal. 4th 1072 (2004).

47 Ibid.

48 C. Winquist Nord, D. Brimhall and J. West, Fathers’ Involvement in Their Children’s Schools (1997) US Department of Education, National Centre for Education Statistics.

49 Waldron, above n 39 at 348.

50 J. Kelly & M. Lamb, ‘Developmental issues in relocation cases involving young children: when, whether and how?’ (2003) 17(2) Journal of Family Psychology 193

51 Submission from Mrs Kay Hull MP at 1; submission from Relationships Australia at 2.

52 From the Association of Children’s Welfare Agencies, the Department of Family and Community Services and Indigenous Affairs, Ms Donna Cooper and the Castan Centre for Human Rights Law.

53 Smyth, above n 23 at xii.

54 Submission from Ms Donna Cooper at 6.

55 Human Rights and Equal Opportunity Commission, Bringing them home: report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) Commonwealth of Australia.

56 Dr Bruce Smyth, personal communication, 27 March 2006.


57 Professor Patrick Parkinson, personal communication, 24 March 2006.

58 AMS v AIF and AIF v AMS (1999) 199 CLR 160 per Kirby J at 207 [143] and per Hayne J at 330 [212].

59 U v U (2002) 191 ALR 289 at 324 [159].

60 Australian Bureau of Statistics 4442.0 Family Characteristics, Australia, 22/09/2004.

61 Easteal et al, above n 18 at 240.

62 Statistics cited in the submission from the Chief Justice, Family Court of Australia at 2.

63 J. Behrens, ‘U v U: The High Court on relocation’ (2003) 27 Melbourne University Law Review 572 at 584.

64 Submission from Women’s Legal Services Australia at 3. This submission was endorsed by the ACT Women’s Legal Centre. A confidential submission also referred to the human rights of mothers.

65 Article 1 of CEDAW reads: “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”


66 Roebuck, above n 26 at 214.

67 Cole v Whitfield (1945) 70 CLR 1 at 17.

68 ZN & YH & The Child Representative [2002] FamCA 453 at [34].

69 Per Gummow and Callinan JJ in U v U (2002) 191 ALR 289 at 308 [89]; (2002) FLC ¶93-112 at 89,090; Gleeson CJ and McHugh and Hayne JJ agreeing.

70 Watts, above n 8 at 67.

71 U v U (2002) 191 ALR 289 at 324 [158]; (2002) FLC ¶93-112 at 89,101.

72 Submission from the Association of Children’s Welfare Agencies at 3.

73 Submission from Women’s Legal Services Australia at 2.

74 B and B (1997) 21 Fam LR 676 at 750; (1997) FLC ¶92-755 at 84,234.

75 A. Dickey, ‘Mandatory parenting orders’ (1998) 72 Australian Law Journal 20; D. Monaghan ‘Can contact parents contravene a contact order?’ (1999) 73 Australian Law Journal 20.

76 Ibid.

77 B and B (1997) 21 Fam LR 676 at 750 [10.64]; (1997) FLC ¶92-755 at 84,234.

78 Schorel v Elm (unreported, Appeal No SA 13 of 1998, 29 June 1998) cited by Monaghan, above n 75 at 20.


79 Monaghan, above n 75 at 22.

80 Submission from the Association of Children’s Welfare Agencies at 3.

81 Submission from the Castan Centre for Human Rights Law at 9–10.

82 Submission from the Murray Mallee Community Legal Service at 6.

83 Submssion from Mrs Kay Hull MP at 2.

84 Submission from the Department of Family and Community Services and Indigenous Affairs at 4.

85 Submission from Centacare Sydney at [2.4].

86 Submission from Ms Donna Cooper at 6.

87 Submission from Law Society of New South Wales at 3.

88 § 202. Notice of Intended Change of Residence Address of Adult

Except as provided by Section 205, an adult entitled to [visitation with] a child shall notify every other person entitled to [custody of or visitation with] the child of an intended change in the primary residence address of the adult as required by Section 203.


§ 203. Mailing Notice of Proposed Relocation or Intended Change of Residence Address

 (a) Except as provided by Section 205, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residence address of an adult as provided in this article must be given by:

  (1) [first class mail] to the last known address of the person to be notified;

  (2) no later than:

(A) the [60th] day before the date of the intended move or proposed relocation; or

(B) the [10th] day after the date that the person knows the information required to be furnished by Subsection (b), if the person did not know and could not reasonably have known the information in sufficient time to comply with [60] day notice, and it is not reasonably possible to extend the time for relocation of the child.

(b) Except as provided by Section 205, the following information, if available, must be included with the notice of intended relocation of the child or change of primary residence of an adult:

(1) the intended new residence, including the specific address, if known;

(2) the mailing address, if not the same;

  (3) the home telephone number, if known;

(4) the date of the intended move or proposed relocation;

(5) a brief statement of the specific reasons for the proposed relocation of a child, if applicable;

(6) a proposal for a revised schedule of [visitation with] the child, if any; and

(7) a warning to the non-relocating parent that an objection to the relocation must be made within [30] days or the relocation will be permitted.


(c) A person required to give notice of a proposed relocation or change of residence address under this section has a continuing duty to provide a change in or addition to the information required by this section as that information becomes known.


89 Submission from Shared Parenting Council of Australia at 19.

90 Submission from Family Services Australia at 3.

91 Martin, above n 21.

92 Submission from the Women’s Legal Centre (ACT) at 1.

93 A v A: Relocation Approach (2000) FLC ¶93-035 at 87,553-54.

94 The matter was remitted for re-hearing.

95 MQ and A (By Her Next Friend) and Department of Community Services [2005] FamCA 843

96 Ibid at [34].

97 Ibid at [63].

98 Bolitho and Cohen (2005) FLC ¶93-224.

99 Ibid at [5].

100 Ibid at [73].

101 ZH & YH & The Child Representative [2002] FamCA 453.

102 Ibid at [55].


103 Ibid at [145]–[148]

104 House of Representatives Standing Committee on Family and Community Services, above n 1 at 121.

105 Submission from Ms Donna Cooper at 5.

106 Submission from the Shared Parenting Council of Australia at 23.

107 Submission from Non-Custodial Parents Party at 3.

108 Family Law Act 1975, sections 60B(2)(b), 68F(2).

109 Specifically at sections 60B(2)(b), s 60CC(3)(b)(ii), s 60CC(3)(d)(ii), s 60CC(3)(f)(ii), s 63C(2) and (2A).

110 Submission from the Chief Justice, Family Court of Australia at 15.

111 S. Gottfried, ‘Virtual visitation: the wave of the future in communication between children and non-custodial parents in relocation cases’ (2002) 36(3) Family Law Quarterly 475; K. Shefts, ‘Virtual visitation: the next generation of options for parent-child communication’ (2002) 36(2) Family Law Quarterly 303.

112 Shefts, above n 111 at 305.

113 Chief Justice of Family Court of Australia, Association of Children’s Welfare Organisations, Centacare Sydney, Murray Mallee Community Legal Service, ACT Law Society.


114 W & R [2006] FamCA 25 (unreported, 30 January 2006) at [54] cited in the submission from the Chief Justice, Family Court of Australia at 9.

115 In the marriage of Holmes (1988) FLC ¶91-918 the mother had applied for custody (as it then was) of the two children and proposed to relocate permanently with them to the United States of America. An order was made granting her custody, but requiring her not to take the children out of Australia. On appeal, the matter was remitted for rehearing.

116 R. Kaspiew, ‘Equal parenting or the effacement of mothers? B and B and the Family Law Reform Act 1995 (Cth)’ (1998) 12 Australian Journal of Family Law 69 at 74.

117 B and B (1997) 21 Fam LR 676; (1997) FLC ¶92-755.

118 Ibid at 750 [10.60]; 84,233.

119 Ibid at 734 [9.58]; 84,220.

120 Ibid at 735-37; 84,221-22.

121 AMS v AIF and AIF v AMS (1999) 199 CLR 160. Whilst the case concerned numerous matters, including inconsistency between Commonwealth and State laws, the focus of this discussion will be the way the High Court dealt with relocation principles. For commentary on the decision, see for example L Young, ‘AIF v AMS: The High Court and Relocation’ (1999) 13 Australian Journal of Family Law Journal 264.


122 Per Gleeson CJ, McHugh and Gummow JJ in AMS v AIF and AIF v AMS (1999) 199 CLR 160 at 167; [1999] HCA 26 at [4]–[5].

123 Cited by Gleeson CJ, McHugh and Gummow JJ at 174; [31].

124 Per Hayne J at 232; [218].

125 Per Kirby J at 207; [143] and per Hayne J at 330; [212].

126 Per Hayne J at 232; [218].

127 See Kirby J at 207; [144].

128 A v A: Relocation approach (2000) FLC ¶93-035.

129 Including Paskandy v Paskandy (1999) FLC ¶92-878 and Martin v Matruglio (1999) FLC ¶92-876.

130 A v A: Relocation approach (2000) FLC ¶93-035, quoting Paskandy v Paskandy (1999) FLC ¶92 878 at 86,453.

131 A v A: Relocation approach (2000) FLC ¶93-035 at 87,555.

132 Ibid at 87,544-545.

133 Ibid at 87,545.


134 Ibid at 87,553-4.

135 Ibid at 87,545 – 87,546.

136 Ibid at 87,547.

137 Ibid at 87,554.

138 Ibid at 87,547.

139 Ibid at 87,548.

140 Ibid at 87,554.

141 Freedom of movement is considered in chapter 3 of this paper at [3.30]–[3.37].

142 A v A: Relocation approach (2000) FLC ¶93-035 at 87,551.

143 U v U (2002) 191 ALR 289; (2002) FLC ¶93-112; [2002] HCA 36.

144 Ibid per Gummow and Callinan JJ at 299 [57]; 89,084.

145 Trial Judge cited by Gaudron J, ibid, at 293-94 [21]; 89,080.

146 Gummow and Callinan JJ, ibid at 306 [80]; 89,089. Gleeson CJ and McHugh J agreed with this judgment.


147 Per Hayne J at 326 [171]; 89,102.

148 Bolitho v Cohen (2005) FLC ¶93-224.

149 Watts, above n 8 at 67–68.

150 U v U (2002) 191 ALR 289 at 296 [35]; (2002) FLC ¶93-112 at 89,081.

151 Ibid at 320-21 [142]; 89,099.

152 Per Hayne J at 327 [176]; 89,103.

153 Bolitho and Cohen (2005) FLC ¶93-224 at [72].

154 Bolitho and Cohen (2005) FLC ¶93-224.

155 Ibid at [73]-[74].

156 Ibid at [72].

157 Per Kirby J in AMS v AIF and AIF v AMS (1999) 199 CLR 160 at 206-7; [1999] HCA 26 at [142].

158 A v A: Relocation approach (2000) FLC ¶93-035 at 87,541, quoting Paskandy v Paskandy (1999) FLC ¶92-878 at 86,453.

159 M v A (Wardship: Removal from Jurisdiction) [1993] 2 FLR 715.
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