Appeal Division of the Family Court of Australia (Appearing for the Respondent father)

This was a case where a father sought and obtained from the trial judge an order requiring the mother and child M to relocate to the same general region where the father had moved to live.  The child was almost 4 years of age when the orders were made.  Both parents agreed that there should be equal shared parental responsibility.  The parties agreed that it was in the best interests of the child to live with her mother primarily, something which the Full Court regarded as significant.

The Full Court concluded that the power to make a coercive order to require a parent to relocate, although available, can only be made if it is a “legitimate exercise” of power. In practical terms it meant that orders of this type should rarely be made and probably only in very exceptional circumstances.  The orders made by the trial judge were supported both by the court’s expert and the independent children’s lawyer, the Full Court concluded that this was not such an exceptional case.

Their Honours also provided a helpful discussion about the application of sec 65DAA of the Family Law Act to applications of this nature, in particular their assessment about the impact that “reasonable practicality” has upon an application of this type.  In this case the Full Court found that the towns where each parent had chosen to live were not open to criticism and indeed were separated by distance of about only 140 km.  The appeal was upheld and the case referred back for rehearing.