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Case Reports - Family Law Principles defined in relocation cases (A v.A) Ms A, the mother of a nine-year-old daughter, wishes to return to live in her native Portugal. She has lived in Australia for some 11 years now and suffers from poor health, including asthma, migraines and depression. She has no family support in Australia, and few friends. Her English language skills are poor and she has limited employment prospects in this country. Ms A’s daughter is the subject of Family Law orders providing for contact with her father, Mr A. The relationship between our client and Mr A is very poor. There are also relationship difficulties between the child and Mr A. Various health professionals have notified DOCS with concerns regarding the father/child relationship. In fact, DOCS had briefly assumed the child’s care to prevent the Family Law ordered contact occurring. Ms A made an application to the Family Court for orders permitting her to relocate to Portugal with her child. Mr A, who is Portuguese himself, opposed her application to relocate and asked the Court for orders that the child live with him. At hearing, the Trial Judge refused our client’s application to return to live in Portugal with her daughter, even though it was supported by the child’s representative. He also refused Mr A’s residence application. Relocation cases present particularly difficult issues for the Family Court, having to balance such issues as a child’s right to a relationship with both parents with a residential parent’s right to freedom of movement. Although a child’s best interests must be the Court’s paramount consideration, those interests cannot be easily separated from the happiness of their primary caregiver. Especially since the 1995 Family Law Reform Act, the issue of relocation has been the subject of a number of well-publicised cases. The A-G himself robed up and appeared on behalf of the Commonwealth before the Full Court in B & B Family Law Reform Act. In 1999, the High Court again attempted to clarify the issue in AMS –v- AIF. However, these judicial pronouncements did little to resolve the issue for litigants and in May 2000 there was a special sitting of the Full Court of the Family Court to deal with the enormous number of pending relocation appeals before the Court. One such appeal was that brought by Ms A against the Trial Judge’s decision. On appeal, the Full Court held that Trial Judge’s approach was flawed and that he did not properly exercise his discretion. The matter has been remitted for rehearing by the Family Court in January 2001. A v. A is now the leading case in relation to relocation matters, comprehensively setting out the matters which need to be addressed by litigants and Judges when dealing with applications to relocate both within and outside Australia. Back to full list of case reports |
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