What are the factors to be considered when evaluating whether or not a parent should be able to relocate with a child?

• The best interests of the child is the paramount consideration in the Court considering whether or not any particular parenting order ought be made (Section 60CA of the Family Law Act 1975 (“the Act”)).

• Consider whether the child spending equal time with each of the parents would be in the best interests of the child (Section 65DAA(1)(a) of the Act).

• Consider whether the child spending equal time with each of the parents is reasonably practicable (Section 65DAA(1)(b) of the Act, also see the case of MR v GRR).

• If an order has not been made for a child to spend equal time with each of its parents consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child (Section 65DAA(2)(c) of the Act).

• Consider whether the child spending substantial and significant time with each of the parents is practicable (Section 65DAA(2)(d) of the Act).

• The court must consider the benefit of the child having a meaningful relationship with both of the child’s parents (Section 60CC(2)(a) of the Act).

• Consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect, or family violence (Section 60CC(2)(b) of the Act).

• 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 (Section 60CC(3)(a) of the Act).

• The nature of the relationship of the child with each of its parents and any other persons, including any grandparent or relative of the child (Section 60CC(3)(b) of the Act).

• The willingness and ability of each of the child’s parents to facilitate, and encourage, a close continuing relationship between the child and the other parent (60CC(3)(c) of the Act).

• The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, siblings, or any other person with whom he or she has been living (Section 60CC(3)(d) of the Act).

• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis (Section 60CC(3)(e) of the Act).

• The capacity of each of the child’s parents and any other person, including a grandparent or other relative, to provide for the needs of the child including emotional and intellectual needs (Section 60CC(3)(f) of the Act.

• The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant (Section 60CC(3)(g) of the Act.

• The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (Section 60CC(3)(i) of the Act).

• Any family violence involving a child or a member of the child’s family (Section 60CC(3)(j) of the Act).

• Any family violence order that applies to the child or a member of the child’s family (Section 60CC(3)(k) of the Act).

• 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 (Section 60CC(3)(l) of the Act).

• The extent to which the child’s parents have fulfilled, or failed to fulfil, each of their responsibilities as a parent to the child (section 60CC(4) of the Act).

• Any particular issues pertaining to the culture of the child particularly if the child is Aboriginal or a Torres Strait Islander (Sections 60CC(3)(h) and Section 60CC(6) of the Act).

• Any other factors the Court considers relevant (Section 60CC(3)(m) of the Act).

As you can see the factors to be considered by the Court are considerable and therefore careful attention needs to be paid to the evidence to be gathered and how it is presented.  Relocation decisions from the Court often make comment about there being no evidence presented by a party on certain matters.  It is not simply enough for a client to tell his or her story.

A further key factor in relation to the presentation of evidence concerning relocation cases is the amount of detail or forethought that had been given to the plans for relocation, the arrangements for the children and in particular the arrangements for continuing the relationship with the other parent.  As a matter of law, an applicant to relocate is not required to give compelling reasons for the relocation, however, it would be illogical for the Court to take seriously an applicant to relocate that has not thought through these issues and the considerations mentioned above.  In particular, a parent wishing to relocate should have a clear idea in relation to arrangements for schooling, accommodation, extracurricular activities, the inter-relationship between these things and the type and hours of employment available to the parent, the level of support available from family, friends and services and the practicality of communicating and spending time with the other parent.

In preparing relocation cases for Court there are often competing concepts to be considered.  For instance, a parent seeking to relocate may say that the child has little or no relationship with the other parent however, conversely it can be argued that the child, if allowed to relocate, will be deprived of the opportunity of ever developing a significant relationship with the other parent.  It can be argued equally that children who have a strong relationship with the remaining parent will be able to maintain that relationship if allowed to relocate, while the remaining parent with a stronger relationship will say that the strength of that relationship say the strength of that relationship is a reason for the relocation not to occur as in their view inevitably the relationship will be compromised or damaged by the relocation.

Undoubtedly one of the key considerations in any relocation application is the likelihood of the parent relocating, complying with the orders for facilitating communication with and spending time with the remaining parent.  If there is a history of being obstructive in relation to the child spending time with or communicating with the remaining parent the prospect of being allowed to relocate are usually diminished.  Again, there can be competing arguments that hostile relationships between parents should be a reason for allowing relocation, especially where there has been family violence.  On the other hand hostile relationships tend to have a far higher incidence of non compliance with orders for spending time and communicating with the other parent.

In any relocation application the traditional considerations of the Court in relocation cases had been that the Court would consider whether or not the parent wanting to relocate with a child should or should not be allowed to go.  In the case of U v U the High Court made it clear that it should also be considered whether or not the parent wishing to remain should be required to consider the reasonableness of also relocating.  While it is clear the Court cannot order a parent wishing to remain, to move and follow the child, it is now a factor that the Court should also consider as to its practicability.

This article is written by Peter Magee (Partner) from Armstrong Legal

There are several things that you can do to help your children get through the divorce with as little difficulty as possible. Both parents working together on this goal can make it even easier for the children and although this would be ideal, I know it may not be possible in a high conflict scenario.

Love
During a separation, children at this time need even more love from parents than they did prior to the divorce. This means telling your children every chance to get that you love them, think of them often, and will always be there for them. Try spending some extra one-on-one time with your kids and if they are old enough, encourage them to talk about their concerns or fears.

Support and Security
Just like love, kids need to feel that they are supported, secure and safe at all times, but this is especially important during the divorce. Often children feel very insecure about their relationship with one or both of the parents, and may feel that the parent that moves out of the house has rejected them.

Address their fears by talking to the children about the divorce, and explain that both parents will still be very involved in their lives. This will work even in very young children (18 months or older) as although they may not yet have the vocabulary to express themselves, they will absorb and understand alot more than you give them credit for. Get down to their eye level, make sure they are looking at you (and not at their favorite new toy) and use simple words to describe what’s happening. Your young child may not have any acknowledgement of what you’re saying but you can bet that it went in and is being processed.

Show children your support and commitment to them by being there, and following through on any plans or events. Older children may also feel that the parent they spend the most time with may not have the financial means to support them, especially if money is an issue in the divorce or in the arguments leading up to the divorce. If this is an issue, assure your children that you have this under control (assuming you do). Children should not feel concern over financial affairs; they need to know that Mum and Dad have this handled.

Avoiding Conflict
Children need to see that Mum and Dad still can work together to be good parents. They should never be exposed to fighting, negative comments about the other parent (which can contribute to parental alienation), or conflict between parents. If you have a high-conflict relationship try exchanging the children at a neutral spot like a McDonalds or a petrol station or perhaps leave the children with a friend and have the other parent pick them up there so you don’t have to meet face to face. It is critical that children not be exposed to the stress and anxiety of parental conflict.

Keep in mind that the family violence laws can also be used to protect children witnessing or suffering the effects of fighting or abuse of a parent. This can mean that a protection order can be made for a parent that includes the children and will suspend existing contact (even if it’s via a court order).

Extended Family
Talk to your extended families to make sure that they are following the same expectations for providing love, support, and only positive comments. Encourage your children to talk to other family members about the divorce if they feel comfortable with this.

Setting a Routine
Children thrive on structure and routine. As soon as possible set a schedule for children to spend time with both parents. Try to stick to the schedule as much as possible as this allows the children to plan for times with both parents, and to feel a part of both parents’ lives.

Be Consistent
Try to set similar expectations for helping our around the house (if they are old enough), discipline and daily routines in both mum and dads house. Consistency is particularly important if you have younger children, as they will adjust to spending time in both homes much quicker if they are consistent.

The recent news about a Sydney man who shut down the harbour bridge for a few hours has highlighted the lengths some men will go to when confronted with parental alienation syndrome (or PAS).  It has been reported that the man spent 4 days researching and talking to security guards on the best way to scale the harbour bridge so he could cause the largest disruption possible – just to display the banners “Kids First” and “Plz help my kids”.

This is obviously a man who loves his children, would do anything for them, but at the same time feels shackled by the system.  None of the details of the case have been released by the courts or the media, but you can imagine that this is a man who doesn’t know where to turn, felt helpless against what was happening and felt he needed to somehow bring attention to his situation.

The term was coined by an American child psychiatrist Richard Gardner in the mid 1980′s. He defines it as “”…a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”. It was originally developed as a theory to explain the increase of the number of reports of child abuse in the 1980′s. Gardner initially stated that the mother was the alienator in 90% of cases, but later stated that both parents were equally likely to alienate.

Parental Alienation Syndrome doesn’t have many supporters in Australia and even the use of the term is controversial. In fact, it is often recommended that you never mention the words “Parental Alienation Syndrome” in front of a judge (if representing yourself). This is because it isn’t actually a ‘syndrome’ and the courts in Australia don’t see it as a proven problem or accept it as a valid argument in court. There was a case which resulted in psychologist William Wrigley being reprimanded by The Psychologists Board of Queensland for endorsing PAS, so don’t expect many psychologists in Australia to provide much support. In any case, your fight is to win parenting orders, not to have an intellectual battle as to whether or not PAS should be recognised by the court system.

Chief Justice Bryant wrote a fact sheet in 2009 on PAS which was available on the Family Law Court website. It has since been removed, but we have reproduced the content of the fact sheet for you to read. You can download the PAS Fact Sheet by right-clicking on the link and selecting “Save-As”

That said, it doesn’t matter what it’s called, nobody can deny that parents have the capability to brainwash a child against the other parent if they so desire.  You don’t need to be an expert or to call it “PAS” to understand what’s happening.

Dealing with Parental Alienation in the courtroom

When trying to address this issue in court, what you need to do is firstly play by the rules.  Even if you believe the court as well as every woman in the world is against you, you shouldn’t go off on a tangent and start accusing people (or the court!) of being ‘against you’ – even if that’s the way you feel.  Doing so will make you look unbalanced and irrational.

What you can do is talk about the behaviour of your child on a more fundamental level and raise your concerns about such behaviour.  You can talk about the ‘alignment’ of the child – which parent the child is more closely ‘aligned’ to and you can use this description to frame your concerns.

Instead of simply stating “My ex-wife has brainwashed my kids against me”, you could state something like “I am concerned that the child has been exposed to high levels of hostility against me whilst in the care of the mother.  I believe that the child will be exposed to emotional harm from unrestrained expressions of dislike of me by the mother.  I am concerned that the hostility towards me the mother displays will adversely affect the child’s emotional development. “

Remember that each one of the concerns that you raise needs to be linked to verifiable behaviour that you have observed – you can’t simply raise concerns with no ‘proof’.  Each concern and the associated incident should also be put in an affidavit to the court.

So don’t go stopping all the traffic on the harbour bridge to raise the awareness of your plight.  By the way, the guy that did stop traffic on the bridge?  He can’t approach his ex-wife or his kids (or the bridge!) so although he got his 15 minutes of fame on the news, he probably hurt his case more than helped with his stunt.

This process has been made a compulsory first step for people who wish to proceed to court to resolve their dispute in relation to parenting matters (ie. which parent the children stays with).  There are a few exceptions to this rule – urgent matters, for example a risk that one parent may leave the country, or in situations where there is a significant threat of family violence you will be able to proceed immediately with an application to the court.

At the end of your dispute resolution session, you will be provided with a certificate that you have attended FDR, providing  each party made a genuine effort to attempt to resolve the dispute.  If FDR did not fully resolve your dispute, you will need this certificate when making an application to the court.

You can attend dispute resolution in person or you can attend over the phone if there is a reason to do so – for example if both of you now live a long distance from each other.  The company that provides the services doesn’t matter, the person simply needs to be a registered family dispute resolution practitioner.

The FDR practitioner will facilitate the discussion but what you discuss during a session is up to both parties.  What typically happens during a dispute resolution session is that each person shares their point of view and identifies any issues that need to be discussed.  These issues are then explored and any options or solutions may be presented.  Any decisions or agreements can also be put in writing.

If any decisions are made during the process, they are not legally binding – you are making a parenting plan and must apply for consent orders from the court before they can be enforced by law.  Anything that is discussed during the session will not be made available to the court, so both participants can feel confident of to freely discuss matters without statements coming back to haunt you later in court.

You must be willing to listen to the other person’s point on view and be genuinely willing to negotiate and commit to reaching an agreed solution.  Focus on compromise rather than conflict.

Note that FDR practitioners are not lawyers and cannot give legal advice.  They are able to give general advise to couples that are going through separation or advise on parenting matters with a focus on the best interest of the children.

Dispute Resolution is a very cost-effective way of resolving any disputes with your ex-partner.  It’s also much faster than going through the court system as getting to a final hearing (depending on the court) can take years.  It’s also a lot less stressful than going through the court system.

If you fail to resolve your dispute during FDR, you can also try some alternative methods before proceeding with a court application.  You could use a trusted friend to help resolve the dispute, you can seek professional arbitration – which is more expensive than dispute resolution, but still much less expensive than going to court.  If you both have a solicitor, you can also negotiate an agreement through your lawyers.

The cost of Dispute Resolution will vary, depending on the organisation which provides the service.  Expect to pay around $150 for a 90 minute session and you may need to book up to 6 weeks in advance, so it’s a good idea to book early.

Click the links for information on:

The Divorce Process

The Cost of Divorce in Australia

In this situation, where an agreement is reached and no Court order is necessary, the parents can enter into what is known as a parenting plan. This is an agreement that is decided jointly. It must be a written document that details how the parents intend to care for their children. As it does not require any contact with the Courts in order to create it, it is not a legally enforceable document and so acts more as a guide.

Having a parenting plan mean the parents don’t have to battle out custody arrangements in court, because parenting plans are generally much quicker to formulate and put into practice. Not having to go to court also has the added bonus of saving what could be a lot of money, as court battles tend to be long and expensive, especially when the disputes are complex and numerous. It is also more comforting for the children involved to know that their parents are still capable of working together calmly even though they have separated. It helps the children feel safe and cared for as well as minimising any stress they experience over the course of the separation period.

It isn’t a legal requirement to have a written parenting plan when a couple separates, but the Family Law Act encourages parents to come up with an agreement for their children. A parenting plan is the most amicable and stress-free means of achieving that agreement. It is important that any parenting plan focuses on the needs and best interests of the children, not just what the adults want or do not want to happen.

Parenting Plan or Consent Orders?

Whether or not you decide to stick with a parenting plan or apply to the court for consent orders will depend on your relationship with your ex partner.  If you feel you can’t trust your partner to stick to a parenting plan, then you will need to apply for consent orders.  For the costs involved in gaining consent orders, please see The Cost of Divorce in Australia

Even though a parenting plan is not enforceable by the court, it may be presented as evidence of intent at a later stage if court proceedings are initiated so you will need to negotiate for the contact that you want now, not capitulate with the intention of asking for more contact at a later stage.

What to include in a Parenting Plan

The information that must be included in a parenting plan includes:

Living Arrangements – Who the child or children will live with, what time they will spend with each parent, how much time they’ll spend with other carers (such as grandparents).  How much notice should be given if changes arise?

Housekeeping – Who will feed the child? Who will wash the clothes? Are any items or toys shared between households?

Special Days – What happens on the child’s birthday? Christmas? Parents Birthdays? Father/Mother’s Day?

Maintaining Contact – How will the children communicate when they aren’t living with the other parent? – eg. telephone, SMS, email, letters.

Transport – Who drops off and who picks up?  Who will take the child to their current and future sporting activities?

Education – What arrangements will be made for the child’s current educational needs? How will we be involved in their activities? How will we communicate with the school? What about homework?

Financial – How will day to day costs be shared? Who will pay for incidental school costs? Who will pay for healthcare? Who will pay for pocket money? Will a Child Support Agency assessment be taken into account? What about any unexpected costs? Will the cost of presents be shared?

Parenting Decisions – Which parenting decisions will be joint decisions? How will you communicate about parenting matters?

Disagreements – How will disagreements be handled? Will the plan ever need a review?

Changing a Parenting Plan

As the parenting plan is a voluntary agreement, it is possible to change it at any time as long as the consent of both parents is agreed. The parents can also ask other trusted people (such as the child’s grandparents or a family dispute resolution service) for their input on the plan if they fear there may be some dispute as to the content or implementation of the plan.

The purpose of the plan is to give the parents the power to decide how they will look after and raise their children following a separation without interference from the courts. However, if they choose to proceed to Court at any point in the future, it is possible that they could be ordered to change the terms of the parenting plan during the formulation of a Court order.

Want to download an example plan? Right-Click and Save-As our Example Parenting Plan (young child)