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One of the more immediate issues that separating parents need to decide after the breakdown of a relationship is what care arrangements will be best for their children. Issues may arise about with whom and where a child is to live, the time the child spends with the non-resident parent (or other person), and how this will work for the child and parents in a practical way. These issues become more complicated where one parent wants to move a child’s residence away from the remaining parent/caregiver, whether intrastate, interstate or overseas. With a population that is more mobile than ever, these issues are frequently dealt with by our family lawyers and courts.

While these types of Court proceedings are often referred to as “relocation cases”, they are no different to any other parenting case. This means that the best interests of the child are considered paramount when determining where a child should live and what time they will spend with the non-resident parent.

Family law team secures favourable outcome at interim hearing

Katerina Petkovska and Shikha Luddu of the Family law team at Macpherson Kelley secured a favourable Court decision for a client in a recent relocation case. The Court typically requires parents to maintain the status quo of the children’s residence on an interim basis, requiring children to continue living where they did prior to the dispute arising. However, in this case, our Family law team successfully argued that it was in the children’s best interests for them to reside with the mother in Victoria, and the Court made orders that permitted the client to relocate the children’s residence from Queensland on an interim basis.

When is relocation granted? It’s about circumstance

The client, a mother of two young children had recently relocated herself and (with the father’s consent) the children from Queensland to Victoria. The parents had agreed that the mother and the two young children would move to Victoria verbally and in text messages. The text messages documented the reasons why the parents thought it would be beneficial for the children to live in Victoria. The reasons included that both parents had immediate family members residing in Victoria, and that the children and parents would benefit from having a support network which they do not have in Queensland. The text messages further documented specific dates that the parties had agreed the children would travel back to Queensland to spend time with the father, including a period before the children would move to Victoria. The messages further contained evidence that the father also intended to relocate to Victoria at a later time.

The text messages clearly showed that the father was supportive of the move. However, upon the children going into the father’s care and without any prior notice to the mother, the father withheld the children in Queensland and refused to return the children to the mother’s care. The father revoked his agreement for the children to live in Victoria but did not notify the mother until after he had filed an Application in the Federal Circuit and Family Court of Australia in Brisbane. In his Application, the father sought an order that would restrain the mother from removing the children from Queensland.

Quick thinking results in grant of urgent hearing

Our Family law team promptly prepared and filed court documents seeking that the matter be listed urgently, that the children be returned to the mother’s care and that the children be permitted to reside with the mother in Victoria.

The Court granted an urgent hearing, and the matter was heard in Brisbane.

At the hearing, the father sought orders for the children to live with him in Queensland and spend time with the mother if she also returned to reside within a 10km radius of the father’s residence in Queensland. The mother sought orders for the children to be returned to her care and reside with her in Victoria, and to spend time with the father as had previously been agreed between the parents in text messages.

Text messages evidence crucial to proving relocation agreement

In presenting the mother’s case, the Family law team produced all of the text message communication between the parents. The messages showed that there was an agreement between the parents which the mother relied upon. In relying on the messages, the mother resigned from her employment and rejected future employment opportunities in Queensland, decided not to renew her lease or seek a new rental property in Queensland, and incurred the cost of freight for her vehicle, hers and the children’s belongings, and their pet dog to Victoria. The Family law team further relied on the father’s conduct including that he did not tell the mother that he no longer agreed to the relocation, and that he withheld the children and filed court proceedings without partaking in the pre-action procedures required by the Court.

Court rules in favour of Macpherson Kelley client

The Court ruled in the mother’s favour ordering that the children return to the mother’s care and be permitted to live with her in Victoria. Further Orders were made for the children to spend time with the father as had originally been agreed between the parents in text messages.

In reaching this decision, the Court relied heavily on the text messages exchanged between the parents and the mother’s reliance on those messages which lead her to relocate herself and the children to Victoria. The Court was critical of the timing of the father’s application given he waited until the children were in his care before he made a Court application and without prior notice. The Court criticised the father for demonstrating a lack of insight into how his conduct may have impacted the young children and the co-parenting relationship between the parties.

Now the children live with their mother in Victoria, and the children will establish roots in Victoria before the matter is determined on a final basis.

Contact our family law team for relocation queries

By providing clear advice, acting quickly, and presenting strong evidence to enable the Court to make a decision, the Family law team were able to secure an outcome in our client’s favour and, importantly, in the best interests of the children in this case.

If your clients need legal advice regarding family law matters including property, parenting or potential relocation matters, please contact our Family law team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.