Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
The Full Court made a recent decision that a long distance relationship with a child and a father could still be a meaningful one.
The judges said: A relationship may be less than optimal but nonetheless meaningful
In Rochford & Fitzhugh  the Full Court heard an unemployed mother’s appeal to relocate a two year old child from Queensland to South Australia.
The mother and father lived in Queensland when they were together.
The father was continuing to live in Queensland.
The father opposed the relocation and sought an order that the child live with him and that his time be increased incrementally towards equal time.
At the time of trial the father spent two days each week with the child.
The trial judge denied the relocation application.
The mother appealed the to the Full Court and the Full Court granted the appeal.
The mother was originally from South Australia and had a 12 year old child from a previous relationship.
She had relocated then from South Australia to south east Queensland with the child from the previous relationship.
The below two points were considered important by the Full Court when granting the appeal:
- Throughout the new relationship, despite the interstate relocation, the mother maintained a long distance relationship with a child and the previous child’s father.
- The evidence of the father of the previous child was that the mother had facilitated and managed a warm and meaningful relationship between the child and him and all of the paternal side of the family
Ainslie-Wallace & Aldridge JJ said:
It seems that the primary judge’s decision to refuse to permit the mother to relocate the child’s residence from south east Queensland to South Australia rested principally on his conclusion that if there was such a move there is a very high likelihood that the child’s meaningful relationship with the father would be either effectively destroyed or significantly diminished.
The Court is tasked with considering the benefit to the child of a meaningful relationship. A relationship may be less than optimal but nonetheless meaningful.
The primary judge, however proceeded on the erroneous basis that a relationship that is something less than optimal cannot be meaningful.
Child Relocation is the changing of a child’s living arrangements so that it makes it difficult for the child to spend time with both parents.
It is often one of the most common family law questions that we are asked.
If parents have equal and shared parental responsibility, they should try and make a genuine effort to resolve this issue amicably.
If there are no court orders, the court will look at s65DAA of the Family Law Act and the relevant case law to assess whether or not a child should be spending equal time or substantial and significant time with each parent.
The Court may not grant permission for the relocation as they may not be satisfied that moving away from one parent is in the best interests of the child.
You can oppose the application to stop the other parent from relocating and tell the court why you think the child should not be relocated.
If the other parent takes your child without discussing it with you, you can apply to the court for a Recovery Order to return the child to where they normally live.
A recovery order enables police officers to take action to find, recover and return a child to you.
Further, a recovery order can also prohibit the person from again removing or taking possession of the child. This is critical in child relocation cases, as parents may attempt to then remove the child from the other parents care.