The parties separated in July 2011. Their daughter was 12 months old. A month after separation the mother and the child moved to live with the mother’s parents in a town approximately 200km from where the parties had lived at the time of separation.

Background

The father, at that time, continued to live in the former matrimonial home. During the course of the trial, approximately two years after separation, the father moved to a town approximately 140km from where the mother and child lived.

Both parties sought that they have equal shared parental responsibility for their daughter and that she continue to live primarily with the mother. The father’s application at the trial was that the mother and child should be required to move to live in an area proximate to his new residence so that the child’s time with him could increase. The mother opposed the move and sought to continue to live in the town where she and the child were living. By the time of the trial, the mother and child had been living in this town for more than 2 ½ years.

Decision of the Trail Judge

The trial judge considered the proposals of each party and ultimately held:

“The Court considers the best interests of [X] to be living in an area where she is geographically proximate to her father and where a substantial and significant time arrangement is both in her best interests and reasonably practicable….the Court is satisfied on the evidence before it that the mother will relocate if [X] is ordered to relocate.”

The trial judge determined that the mother should be required to move the child’s residence closer to that of the father and made a number of parenting orders, including:

“That the Mother do all things necessary to relocate [the child’s] home so that she resides in the [Z] region within a radius not exceeding 20 kilometres of [G] railway station (“the [Z] area”) no later than 17 January 2015.

The mother appealed the decision, in particular the order requiring her to relocate with the child.

Full court considers the circumstances where a parent can be required to relocate

In assessing the mother’s appeal, the Full Court identified:

“…the central issue in this appeal is whether in all the relevant circumstances of the case – including, importantly, the parents’ common contention that it was in the child’s best interests for the child to continue living primarily with the mother – it was legitimate for the trial judge to exercise power to make a coercive order, as one of the final parenting orders made, requiring the mother to relocate the child’s residence (and in reality her own residence)…
Notably, the final orders made did not include any order imposing any restriction upon the father’s ability to live wherever he chose.”

The Full Court then considered previous cases where it had been determined that the Court did have the power to both restrain a parent from moving and also require a parent to relocate and noted, particularly in relation to a coercive order to relocate:

“In Sampson & Hartnett (No. 10) (2007) FLC 93-350] this Court thus made it plain that “[t]he proper exercise of such a power is likely to be rare” and orders made pursuant to an exercise of that discretion would be “…at the extreme end of the discretionary range…” (Sampson at [58] and [83]. It follows that there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/children (Sampson at [17]).”

The Full Court considered the trial judge’s application of this test to the evidence available at the trial and commented:

“In our judgment the central findings which we have identified thus far do not sit conformably with a conclusion that rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order. However, recognising that a discretionary determination cannot legitimately be overturned on appeal simply because the appellate Court would have determined the matter differently, and the discretion must be demonstrated to have miscarried in the appellate sense…”

In considering the scope of the discretion available to a trial judge in determining parenting matters and how and to what extent that discretion should be exercised the Full Court noted:

“…whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon [a child’s] best interests….
It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.”

The Full Court ultimately considered the exercise of the discretion of the trial judge in this case, particularly in the context of the limited circumstances where a coercive order may be appropriate, and held:

“It was unsurprising, given the relatively modest geographical separation between Town S and Town C, that the trial judge found that the child would continue to have the benefit of a meaningful relationship with the father on whatever proposal for time and communication was adopted. However, on that central finding, taken with all the circumstances of this case, no occasion arose for the Court to consider making a coercive order imposed on the mother’s freedom to choose where she lived and worked. That is, no sufficiently adverse effect on the child’s welfare was identified that this had to be addressed by the making of a coercive order.

If it had been necessary to consider such a coercive order in the context of “reasonable practicability” it was necessary that the trial judge not assume, as appears to have been the case, that the father’s choices and freedoms did not fall for consideration. Here it seems that the trial judge proceeded on the footing that the mother had to subordinate her ambitions and wishes to the wishes of the father to pursue his life in Town C and his work…No consideration was given, given the respective parenting roles in contemplation, to the father moving. We consider that his Honour thus erred in principle.

For the reasons already observed it was unnecessary and in error for the trial judge to consider any coercive order in the circumstances of this case.”

The Full Court set aside the coercive order requiring the mother and child to relocate and the matter was remitted to the Federal Circuit Court for a re-hearing before a different judge.

The significance of this case

Parenting matters involving distance and/or relocation raise complex issues. Most commonly, the application before the Court will be one parent seeking to be able to move with a child and the other parent seeking to prevent that relocation. Applications by a parent seeking that the other parent move with the child to live in a particular location are far less common but do, nonetheless, arise.

The Full Court in Adamson confirmed that the Court does have the power to make a coercive order; however such power should be exercised with considerable caution. Generally, the making of this type of order should occur only where the exceptional circumstances of the case warrant such authoritative interference by the Court with a parent’s basic freedom to decide their own living arrangements.

If this situation is relevant to your circumstances or you would like further information please contact our family law team.