07 Sep Child Relocation: A Case Study
A family law case in which the mother was ordered to relocate with her child to be closer to the father in order to make it easier for both parents to agree on acceptable custody arrangements
Tandy & Eastman
In Tandy & Eastman [2020] FCCA 541 (19 February 2020 Federal Circuit Court of Australia) Judge Young heard an application regarding the 20 month old baby of the parties who was taken away intestate by the mother without the knowledge or consent of the father. The father applied for an order to return of the child to Darwin as well as a recovery order if the child is not returned. The father also sought orders allowing the child to live with each parent on a two or three day roster basis over a fortnight. The mother opposed the application and sought orders that the child live with her in the city where she had moved to (“City B”), offering the father 4 nights with the child every two months.
Background of case
The mother moved to Darwin to live with the father in 2015 and married in 2017.
They had a child together in 2018 and separated in 2019. The mother was the child’s primary carer although the father gave evidence that after separation he was spending ‘two or three nights a week with the child and sometimes on the weekend’. The mother alleged family violence and relocated with the child from Darwin to City B on or about 3 February 2020. The father commenced proceedings as soon as possible on 10 February 2020 seeking a return of the child to Darwin and a recovery order in the event of non compliance.
The issue in this case was determining what power the Court had to make coercive orders making the mother resume living in Darwin in order to continue her role as the primary carer of the child. Usually orders are centred around the child being returned rather than forcing the parent they are with to return as well. But in a case of such a young baby that is physically and emotionally dependent on its mother, the Court had to look at this issue as well.
Mothers case
The mother’s responding application sought orders that the child lives with her and that the child spends time with the father over 4 nights every two months in two blocks of two nights each, separated by one night. The mother proposed that she and the child would fly to Darwin for this purpose and that the expense of traveling the flights would be shared equally between the parties. The mother alleged family violence and unacceptable risk of harm.
Court decision
Judge Young referred to two cases: Oswald & Karringron (2006) and Goode & Goode (2006) in reference to what power the Court has to make coercive orders. In Oswald & Karringron (at paragraph [16]) it was determined ‘that such a coercive order is at the extreme of the Court’s discretionary power and is “rare” and “extreme.” In Goode & Goode, it was made clear that ‘it is not simply enough for a court considering a case . . . me to simply refer to the status quo even in an interim hearing and the process required is that set out in Part VII of the Act, that is a consideration of the best interest of the child . . .’
Judge Young referred to section 60CC of the Family Law Act and in particular subsections 3 (b) and (c), (ca), and (d), as the most relevant in this case when looking at what was in the best interests of the child. Judge Young was satisfied that the primary considerations are the benefit to the child of having a meaningful relationship with both parents, in particular the father. The Court made findings that it was in the child’s best interest to not be separated from either parent and in particular the father, and ordered that the child and the mother relocate to Darwin within 28 days and parties could make a separate application for specific times the child was to live with/spend time with each parent.
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