Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
In my last column I talked about the difficult issue of one parent relocating with a child and the angst that the move can cause to the parent left behind.
Because it is such a sensitive topic, I wanted to revisit it again and talk about a High Court case that has become a landmark decision when dealing with relocation issues and children.
In the case of Rosa, the parties, together with their 5 year old child, moved to Mt Isa where the husband had obtained a job.
Seven months afterwards the parties separated, and the mother wished to return to Sydney with the child. She had full time work available in Sydney and family to support her. The husband wanted to stay in Mt Isa.
The husband wanted to have equal time parenting of the child. Due to the tyranny of distance this would not be practical if the mother was allowed to move to Sydney.
In Mt Isa the mother, due to acute shortage of rental property, had to live in a caravan park. On alternate weeks she lived there with the child. The opportunities for the mother to obtain a job or good rental accommodation in the city were very slim due to economic conditions.
The mother applied to the Court for an order that she be allowed to relocate to Sydney with her child.
The father wanted the mother and child to remain in Mt Isa with the week about shared parenting to remain in place.
At the first Court hearing the Judge did not consider that it would be beneficial to the child if the parents lived thousands of kilometres apart.
He felt that equal parenting in Mt Isa was in the best interests of the child and the wife’s application to move was refused.
She then appealed the decision and the matter was eventually heard by the High Court.
The High Court found in favour of the wife relocating and reversed the earlier decision.
The Court held that the Family Law Act required a practical assessment to be made as to whether equal parenting time was feasible.
They looked at the reality of the situation of the parents and particularly the mother in this case in determining whether equal time parenting was practicable.
She was living in a caravan park with a young child with little chance of obtaining employment in Mt Isa and insufficient funds to afford better accommodation.
In Sydney she had a job waiting and family support.
The decision allowing her to relocate was based on the fact that in the Court’s view it was not reasonably practical for the mother to remain in Mt Isa. The prime consideration of the Court in dealing with parenting matters is that the decision made will be in the best interests of the child.