Relocation and recovery orders

Relocation orders

The Family Law Act does not expressly address relocation issues—that is, the problems which arise when one parent seeks to move a long way away from the other parent, for example, because of concerns about their own safety or the safety of their children. Relocation disputes are determined in accordance with the general parenting order principles set out in pt VII of the Act. Stakeholders have raised significant concerns with the Commissions that, in practice, relocation orders are being refused where a parent and his or her children are at risk of exposure to family violence.

In 2006, the Family Law Council recommended to the Attorney-General that additional provisions should be inserted into the Family Law Act to deal specifically with relocation. The recommended provisions included that a court should consider what parenting arrangements could be made if a party were to relocate to ensure that the child maintains a meaningful relationship with both parents, to the extent consistent with the need to protect the child from physical or psychological harm.

Refusing to make relocation orders in situations involving family violence has serious repercussions for the safety of victims and their children. Victims in rural or remote areas of Australia may not be able to be (or feel to be) safe from violence and yet remain in close enough proximity to the person who has used violence to keep child contact arrangements unchanged. For victims who have been distanced geographically from their extended family or primary support network, regaining this support could be crucial to moving forward in their lives.

The Commissions are interested in stakeholder views as to whether any additional legal or practical reforms are needed to address issues related to the practical interaction of protection order proceedings and relocation disputes. For example, should there be any presumption in legislation or policy—for example, the Best Practice Principles for Use in Parenting Disputes when Family Violence or Abuse is Alleged issued by the Family Court^[8]—that, in cases where a family court determines there has been family violence, it is likely to be in the best interests of a child to be able to relocate to a safe distance from the person who has used violence? A broader question is whether the Family Law Act should be amended to include provisions dealing with family violence in relocation matters over and above the provisions of the Act that apply to family violence in parenting proceedings generally.

Any additional recognition of family violence in the context of relocation disputes will need to be flexible enough to accommodate the varying severity and nature of the violence in a particular case. The Commissions seek stakeholder views on whether any legal or practical reforms in the context of relocation disputes should apply in all or only some cases of family violence. If reform is warranted in some cases of family violence, then a question arises as to how this should be determined.

Recovery orders

Many relocation disputes are associated with unilateral moves after separation but prior to court proceedings. This may give rise to a recovery order under pt VII of the Family Law Act or the Convention on the Civil Aspects of International Child Abduction (Hague Convention) as implemented by the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The Hague Convention is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. Signatories commit to the prompt return of children to the country in which they habitually reside so that issues of parental responsibility can be resolved by the courts in that country. There is an exception to the requirement for the immediate return of a child, however, if it is established that the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation.^[9]

The Commissions seek stakeholder feedback on whether issues arise in practice from the interaction between protection orders under state and territory family violence legislation and recovery orders under div VII of the Family Law Act or the Hague Convention, as implemented by the Family Law (Child Abduction Convention) Regulations. If issues are identified, the Commissions are interested to hear what reforms are necessary or desirable in this context. One option, for example, could be to institute a formal legal or practical connection between undertakings sought as a condition of returning a child pursuant to the Hague Convention and protection orders under family violence legislation. This could involve, for example, a formalised process through which entry into non-molestation undertakings pursuant to a Hague Convention recovery order trigger proceedings for a protection order in favour of the child under state and territory family violence legislation, bringing all this information to the attention of magistrates.