My former partner and I have separated and I want to relocate with the children to be with my family. What should I do?

Relocation is a common issue in family law disputes where the Court is asked to decide on the outcome. Sometimes one party has moved interstate at the commencement of the relationship to live with the other party and they want to return home after the relationship has broken down.

The Family Courts often have to make decisions about whether a party should be allowed to relocate with the children of a relationship. The recent case of Holzmann v Holzmann required the Court to consider whether a mother should be permitted to move from Darwin to return to her home town in the Northern Territory.

In 2005, the mother and father met in an undisclosed town in the Northern Territory. The mothers family lived in this town and the mother had lived there until she left to be with the father. In 2006, the parties moved to Darwin together and were married in 2008. They had two children; the eldest being born in 2009 and the youngest in 2013.

In 2013, the parties separated and the father left the family home in Darwin. The mother had always been and continued to be the children’s primary carer. Following separation, the mother was unhappy, presumably due to the breakdown of her marriage and she was struggling to overcome these feelings. Her unhappiness was evident to the children. For example, the mother would sometimes cry in front of them.

In 2015, the parties resolved their property matters and the mother retained the family home as part of the property settlement. In 2016, the mother sold the family home and purchased a new property in her home town.

In February 2016, the mother took the children to her home town without discussing this with the father. As a result, the father issued Court proceedings to recover the children and seek that they live with him. The mother responded seeking permission from the Court to relocate to her home town with the children. The mother agreed that the children would stay with her in Darwin until the matter had resolved.

Interim Orders were made by consent in February 2016 which provided for the children to spend five nights per fortnight with the father. The parties reduced this time by agreement and later increased the time back to five nights, just prior to the trial.

The parties agreed that they should have equal shared parental responsibility. The mother did not think an equal time arrangement was appropriate and the father said that an equal time arrangement may be appropriate in future. The trial judge considered whether substantial and significant time was in the children’s best interests and reasonably practicable in the circumstances. While the trial judge found that it was in the best interests of the children to spend substantial and significant time with both parents, it was held that this would not be reasonably practicable in circumstances where the mother could not continue living in Darwin.

The trial judge made orders allowing the mother to relocate from Darwin to her home town. A key aspect of the trial judge’s decision was that the mother’s sadness was unlikely to resolve if she remained in Darwin. Further, the judge expressed concern regarding the children’s exposure to their mother’s unhappiness which would become more of an issue as they grew older and became more aware of her emotions.

The father appealed the decision on the basis that the Court did not consider equal time or significant and substantial time.

Family Court Judges Thackray, Strickland and Carew had to consider two issues which were the basis of the father’s appeal.

The first issue was whether the trial judge failed to consider making orders which allowed for the children to spend equal time with the parties. The Court considered the father’s submissions regarding the matter and noted that his arguments at trial were purely based upon whether the mother should be allowed to relocate or not. The father provided one submission at trial regarding the potential for an equal time arrangement to commence in 2018. The father did not put evidence to the Court which suggested that the mother would be happier living in Darwin if an equal time arrangement was in place, therefore this was not considered by the trial judge.

The second issue was whether the trial judge erred when finding that the mother’s unhappiness would affect her parenting skills and the children. Evidence was presented at trial regarding the mother’s mental health and diagnosis of depression. The trial judge considered all of this material and determined that the matter was speculative and not clear cut.

The Court held that the trial judge properly considered whether equal time or substantial and significant time would be in the children’s best interests or was reasonably practicable. Therefore, it was held that there was no merit in this ground of appeal.

The Court held that the trial judge did not err when making a determination regarding the mother’s mental health whilst living in Darwin. The Court asserted that this was a difficult issue to determine and the decision was open to the trial judge to reach a determination on the facts. The appeal was dismissed and the father was ordered to pay the mother’s costs.

If you are dealing with a situation where you or your former partner wishes to relocate with the children after the breakdown of your relationship, you should ensure that you contact Caroline Counsel Family Lawyers for advice about your options as soon as possible. Our firm can assist you to negotiate with your former partner about the issue of relocation or if required, we can represent you in Court in relation to parenting matters or a general or specific nature.

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice.  The contents of this blog are relevant as at 9 March 2018.  We recommend you obtain specific advice relevant to you and your family’s situation.

By Michelle Petrovski and Caroline Counsel

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