Abstract: Following a 2009 National Council Report, the Australian Law Reform Commission (‘ALRC’) inquired into the interaction between state and territory family violence and child protection laws and the federal Family Law Act 1975 (Cth).
The ALRC notes that relocation disputes are highly sensitive, as “refusing to make relocation orders in situations involving family violence has serious repercussions for the safety of victims and their children”. It recognises that 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).The project reports on in-depth semi-structured interviews with parents (11 mothers and 27 fathers) who had a contested court order in relation to relocation between 2002 and mid–2005 and a detailed analysis and coding of judgments in relocation cases for the same period.
The themes that emerged from the interviews included:
Abstract: The article examines social science evidence relevant to the issue of relocation. It aims to identify and analyse the literature on the impact of relocation on children, young people and adults in separated and not separated families. The article concludes that relevant research is diverse and contested across psychological and social variables. Emergent themes from surveys of international studies and Australian family law court decisions include that socio-economic difficulties often underlie frequent relocation and significant negative outcomes, and that domestic violence is a potential issue in relocation disputes.
See in particular Part 3 on ‘Domestic violence, post-separation parenting and relocation’. The article outlines United States based research by Bowermaster (1998) on relocation and family violence, which suggests that aspects of relocation disputes may be linked to “the greater likelihood of litigation in high conflict couples and the controlling tendencies of abusive husbands seeking to restrict women’s movements” (p 49). The authors also note that Australian legal literature recognises the potential for abusive partners to engage in vexatious litigation as a means to exert control, which raises the possibility of children being exposed to the harms inflicted by family violence and for “relocation to be intended, in part, to protect a parent and children from further exposure” (p 50).
The article concludes that research investigating relocation in the particular context of parental separation is scarce, with limited social science literature being a barrier to accurately informing practice, policy and decision-making in the Australian context of relocation disputes.Abstract: This article reports on the findings of a mixed-method research project that examined relocation cases litigated prior to the 2006 reforms to the family law system. The study was based on an analysis of 190 court judgments made between 2002 and 2004 in the Family Court of Australia, and qualitative interviews with 38 parties to relocation disputes between 2002 and mid-2005. A key finding from the study is that most litigated disputes over relocation between separated partners occur in the context of fractured inter-parental relationships, being the product of conflict rather than the single source.
In particular, the article reports findings from the judgment sample that among litigated relocation disputes, 80% of relationships could be characterised as ‘high conflict or abusive’, with allegations of violence being raised in nearly 70% of cases (p 73). When asked of their reasons for relocating, 8% of litigants reported doing so to ‘escape family violence, threats or the drug scene’ (p7 4). The authors also highlighted the gendered nature of relocation disputes, with 88% of the parties who made the application being women (p 73).
See also findings from the interview sample that the majority of relationships described by parents were ‘marked by significant levels of conflict, with allegations of abuse and family violence relevant in the majority of cases’ (p 75). Of 38 participants, 24 reported significant conflict before, during and after the dispute (most of whom reported family violence and some alleged instances of child abuse). A smaller group of 4 participants were marked by the most severe levels of family violence and mental health problems, citing a ‘complete, or almost complete, diminution of contact between one parent and the children after the dispute’ (p 75).
The authors also note the need for greater empirical examination of parents’ and children’s experiences in relocation disputes (p 77).Abstract: This article examines relocation decisions since the law changed in July 2006 to place a greater emphasis on the importance of involving both parents in the lives of children. The analysis of these 58 relocation cases indicates that it is harder for a primary caregiver to relocate than before the 2006 amendments. The authors note that in a number of the cases where a relocation was allowed, an order was also made for sole parental responsibility. The article also notes it is harder to justify a relocation overseas than within Australia.
The caselaw analysis demonstrates the importance of lawyers and mediators helping parents to ‘reality test’ the costs and benefits of a proposed relocation, and also to give realistic advice to a parent who wants to oppose a relocation. Issues for parents wanting to relocate include the risks of residential mobility, and the costs and burden of the children’s travel. Issues for parents opposing a relocation include whether there would be a significant diminution in the quality of the relationship between the parent and child if the relocation occurred, whether there might be evidence of a history of violence, and whether it is reasonable and practicable for that parent to relocate also.This article reports on the experiences of fifteen mothers over a 4-5 year period following the conclusion of a relocation dispute where the initial application to move was unsuccessful. Eight of the surveyed mothers indicated that in hindsight, it had been better for their children to stay in close proximity to their father (all of whom said the children were “fairly” or “very” close to their father). The level of toxicity in the father-mother relationship was found to be one of four key factors affecting mothers’ adjustment to the result.
See in particular that three of the four mothers who had not adjusted to being unable to relocate reported “high levels of acrimony or hostility” with the father (p 83-84). Hostility and anger were also reported by three mothers who had adjusted to the outcome. Toxicity in these relationships had varying causes, with several cases involving allegations of verbal and emotional abuse during the relationship and controlling behaviour post-separation.
See also findings at pp 69-70 that six of the fifteen surveyed mothers reported instances of family violence. Of these, one participant reported recurring violence throughout their cohabitation, a second reported a standalone incident of physical assault, a third reported the existence of a restraining order whilst cohabiting, and the remaining three reported having restraining orders post-separation.Abstract: This article reports the findings of an empirical study of parents who were involved in relocation disputes in England, expressing their views on the experience of being involved in such a case. The authors consider the origins of the disputes and parents’ perceptions of how their cases were resolved, as well as some initial discussion of the aftermath of the cases as seen in the first few months.
The authors also note that relocation cases are known to be amongst the most difficult decisions for family court judges. See in particular p 405, where two mothers who had been subjected to violence and abuse by the relevant fathers described having their relocation request denied. In both cases, the court reinforced contact time between the father and children. This included one case where, although the father had a protection order made against him after stalking the mother, the court refused the relocation application and approved significant overnight contact each week with the father. The mother reported that this outcome felt as if they had “[put] our abuser right back in control”.
