On 22 November 2007, the Full Court of the Family Court of Australia released its decision in Sampson & Hartnett (No. 10), [2007] Fam CA 1365. While most relocation cases deal with a parent seeking to relocate with a child, the present case considered the power of the court to make an order directed at a parent requiring the parent to relocate from Geelong to Sydney.
Two or three years before the wife met the husband, the wife had moved to Sydney from Melbourne or Geelong. The parties commenced cohabiting in 2000 and were married in 2001. Their first child was born in 2003. Final separation of the parties occurred in August 2004. Upon separation, the wife moved to Geelong. The parties' second child was born late in 2004. At the time of trial, the wife was living in Geelong with the two children, while the father remained living in Sydney.
At trial, the primary judge made parenting orders in respect of the two children. Justice Moore found that both parent should have the opportunity to take a proper role in their day to day lives and upbringing. The practical difficulty was that the parents now lived in different states. In addition, the primary judge expressed a concern that the mother had not demonstrated a sufficient appreciation of the father's role in the children's lives which could eventually result in the children becoming alienated from their father.
Justice Moore ordered that the parents were to have equal shared parental responsibility for their children, and that the children's residence be established in Sydney. Although the order did not actually mandate the relocation of the mother herself to Sydney, the orders would be unworkable if the mother did not relocate. In the proceedings the mother had made no offer to relocate and, in fact, and expressed a firm resolve not to relocate to Sydney.
The mother appealed against the parenting orders made by Moore J. The Full Court considered the power of the court to make orders requiring interstate relocation, particularly where the order did not derive from a proposal made by a party.
The Full Court expressed little doubt that the Family Court had the power to order a parent not to relocate by ordering that parent, who wished to act as primary parent, not to change the location of a child. A less considered issue was whether there was a power to make an order to relocate directly against a parent.
The majority of the Full Court concluded that there was power, pursuant to s 114(3) of the Family Law Act, to enjoin a parent from relocating or to relocate, provided that that injunction was no more than was necessary to secure the best interests of a child. The court noted that the proper exercise of such a power was likely to be rare because:
- the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
- in a parenting case, an order directed to a parent to relocate or not to relocate will likely only serve a useful purpose if that parent is to discharge a particular role as a parent.
To order someone to relocate to another place requires the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. This requires a close analysis of the moving party's capacity and/or the other party's capacity to provide for such practicalities having regard to the orders proposed by the court.
In the present case, the primary judge's orders were at the extreme end of the discretionary range. As a result of their extreme consequences, an unusually stringent enquiry was required. In the present case, insufficiency scrutiny was given to alternatives to enable the development of the father's relationship with his children. The primary judge should have explored all avenues of lesser impact on the mother's freedom of choice. For example, she should have considered whether contact would sufficiently advance the children's relationship with their father such that if the mother chose not to live in Sydney, the children could move to the father's primary residential care.
Further, the primary judge gave insufficient scrutiny to the practicality of the mother living in Sydney. The Full Court found prior to madding an "order having such a drastic and coercive effect", the primary judge should have considered:
- the mother's capacity to work measured against her care of the children;
- the costs of child care;
- the availability of work for the mother; and
- the capacity of the father to meet any need of the mother for support.
The majority of the Full Court remitted the matter back to Moore J for further consideration.