“Clandestine”, “surreptitious”, “deliberate deception”, “blatant cunning and deceit” says Judge to describe the actions of a Mother who relocated with her three year old daughter from the New South Wales region to Tasmania, without telling either the Court or the Father.
In 2012, a Mother relocated with her daughter, 3 year old “Sally”, from NSW to Tasmania. On the occasions that Sally was scheduled to spend time with the Father, the Mother booked flights from Hobart to Sydney, where she drove Sally from the airport to the contact centre, where they would meet with the Father. This travel would be repeated in reverse on return to Hobart.
For nine months, the Mother maintained a ruse that she and Sally were continuing to live in NSW, coming clean as to their true living circumstances only days before the matter went to Final Hearing. Despite proceedings being on foot prior to her move and having opportunities to disclose her possible or intentions of relocating, the Mother opted to stay silent on the matter.
The Mother sought by way of Final Orders that Sally continue to live with her in Tasmania and that the Father spend incremental time with Sally. The Father sought, amongst other things, that Sally live with the Mother and that the Mother return to NSW .
The importance of a child having a meaningful relationship with both parents and the need to protect them from physical and psychological harm are referred to as ‘twin pillars’ that assist to determine what is in a child’s best interests. Having regard to these considerations, the Judge viewed the Mother’s deceitful actions in relocating without the Father or the Court’s knowledge to be “most serious and grave light as not being in Sally’s interests”.
The Judge found that the Mother’s argument that she would facilitate time between Sally and the Father by return trips from Tasmania to the NSW region to be inherently problematic, with logistics, the financial burden and the strain on a young child traveling, to be not in Sally’s best interests. Further, long term, the Father would be unable to be much of a presence for Sally’s schooling, given the distance.
The Judge Ordered that that Mother return with Sally to NSW.
You can imagine that, in the circumstances, were the Court to have allowed the Mother to have stayed in Tasmania with Sally it would risk creating a precedent that rewards or encourages parents for deceiving the Court and relocating with their child, at their freewill.
However, it is important to note that the Judge in this case did not simply Order the Mother to return with Sally to NSW as punishment , but rather, the Judge found that it was in Sally’s best interests that she have the opportunity of a meaningful relationship with her Father.
Under the Family Law Act 1975, both parents are required to consult and make a genuine effort to agree about a proposed move where it would make it significantly more difficult for the child to spend time with the parent who got “left behind”. Proposed relocation by a parent who is a primary carer requires the Court to carefully exercise structured discretion in determining whether it is an appropriate Order to make.
Be warned! If you do relocate with your child and you haven’t discussed it with the other parent, then you risk future litigation and an Order from the Court that you return on a final basis or return pending final determination. This can come at an emotional and financial cost and expense for yourself and your child/ren.
Consequences for contravention of Court Orders or contempt of Court can range from a community services Order, a bond, fine or even imprisonment!
Remember, get legal advice before you relocate, or it could be very costly.
By Siobhan Mullins, Farrar Gesini Dunn.