Sydney Morning Herald
Wednesday, February 7, 2001

Live closer or lose custody, judge tells woman

By Adele Horin
Sydney Morning Herald

A Family Court judge gave a Sydney mother 10 weeks to make an agonising decision: live within 50kilometres of your ex-husband or lose custody of your five-year-old son.

The woman, six months pregnant at the time of the judgment late last year, had moved with her new partner and son to the country to start a new business. Her new home was about 260kilometres away from her ex-husband, who had custody of their older child.

But the judge agreed with the ex-husband that the travel involved to maintain regular contact - 130kilometres to the meeting point - was too onerous for him and the children. The father made the four-hour round trip to the meeting point every Friday and Sunday night, and each child travelled between the two homes (a round trip of about seven hours) on alternate weekends.

The trip was "beyond the Pale," the judge decided, finding that a "one-way trip of one hour is ... the desirable limit for frequent travel."

The mother was given until December 31 - a month before her baby was due - to move closer to her ex-husband. This was to ensure the younger boy was settled before the start of the school year. But she was unable to meet the deadline, and the boy is with his father. The mother has appealed to the full court of the Family Court.

The case highlights one of the thorniest dilemmas to emerge since amendments to the Family Law Act in 1995 put greater emphasis on a child's right to know and be cared for by both parents.

"These relocation cases are some of the most difficult to have arisen since the reforms," said Ms Belinda Fehlberg, associate professor of law at the University of Melbourne.

"The courts try to weigh up the importance of contact against other issues of importance in a child's life, such as a mother's ability to find employment, have the support of her family, and re-partner."

When the changes were introduced, it was believed that the new emphasis on shared parental care would make it more difficult for the parent with custody (the resident parent) to move. This appeared to be the case at first.

But Mr Garry Watts, chair of the family law section of the Law Council of Australia, said the "focus is back on selecting which of the competing proposals is in the best interests of the child rather than starting from the presumption that a parent had to show compelling reasons to move."

Dr Juliet Behrens, a senior lecturer in law at ANU and co-author of a study on relocation cases, said "highly political decisions are involved about how [a judge] views the importance of the father-child relationship against a woman's mobility and equality, and right to get away from a bad relationship."

In the Sydney case, the parents, both "fine, upstanding citizens who had done a great deal for their children", according to the judge, the Hon. Justice Lloyd Waddy, had an amicableshared parenting arrangement since they separated in 1997. The older boy lived with the father, and the younger with the mother, though he spent from Friday to Monday with his father. Both parents were flexible and accommodating. They "had got on as one might hope that separated parents ideally could," the judge said.

As well, the siblings saw each other every weekend and were close despite a fairly big age gap between them.

It was this close arrangement that was disrupted when the mother moved last May, with the conditional permission of the Family Court, to the country. She said they had moved out of Sydney for economic reasons.

So that the siblings continued to see each other every weekend, the parents were required to drive long distances with one or other of the children every Friday and Sunday.

The judge said the mother showed no "sense of appreciation that to impose upon a man the traffic ... twice every weekend ... was an imposition brought about merely because she wished to relocate herself with someone with whom she has established a de facto relationship..."

He agreed with the father that the travel negatively impacted on the children's lives. He also agreed that the younger boy was "primarily attached to his mother".

However, he said, the primary attachment "is just that".

"There are other attachments ... He could have a city primary school ... a range of high schools from which to choose ... all the advantages of city life."

The judge said the children, if they lived with the father, should together spend every alternate weekend with the mother.
Mr Garry Watts, of the Law Council, said: "The paramount consideration in relocation cases is the best interest of the child, but it is not the sole consideration.

"Other things like the happiness of the resident parent and the party's right to freedom of movement also have to be weighed, and there is no single factor which decides what the result should be."

Copyright © 2001. The Sydney Morning Herald