Deployment, separation and children: permission to relocate ‘wherever’

By Alison Ross and Kathleen Coggins / 29 October 2019
4 min.
Worthwhile read for: Australian

While the impact of deployments for members of the Australian Defence Force (ADF) is significant for all families, the impact is even more significant for a family when the move occurs after separation. 

There has been a number of recent cases in Australia where members of the ADF have been permitted to relocate with their children to ‘wherever’ their ADF parent is deployed, notwithstanding that the details of the deployment are yet to be determined.

While this may offer parents within the ADF some comfort in terms of potentially being permitted to relocate their child in the future, non-defence force parents may be concerned about the generality and uncertainty of orders being made in these terms. 

How does the Court make orders in respect of children in the event of deployment?

Similarly to any relocation matter, the Court is guided by relevant objects and principles set out in the Family Law Act 1975 (Cth); the paramount consideration being a child’s best interests. There is no special or separate set of rules for the deployment of families in the ADF in comparison to a typical parenting dispute, nor are their specific rules for determining relocation matters generally. 

However, there are a variety of issues that may arise which the Court may need to consider when determining whether or not a child should be permitted to relocate as a result of one parent being deployed.

What type of orders may the Court make?

Two recent cases (Wendland & Wendland [2017] FamCAFC 244 and Osmond & Brand [2019] FCCA 1696) saw orders made permitting a child to relocate to ‘wherever’ the parent in question was posted by the ADF. It was agreed in the former case, on appeal, that such relocation be restricted to a deployment in Australia and, in the latter case, an order was made for a restriction to deployment in Australia. 

While such an order may appear to be extremely broad and uncertain, there are a variety of reasons why an order in these terms may reflect the best interests of a child. 

One of the most important reasons can be said to be the need to bring proceedings to an end and to further minimise the prospect of future proceedings on each occasion a parent is deployed. Currently, the delays in finalisation of proceedings can be significant. An extreme example of this was in Osmond & Brand, where the child was two years old when proceedings commenced and nine years of age when final judgment was delivered in 2019. The Court considered the child’s best interests would be met by determining the issue of future deployments during the proceedings, despite the timing, location or length of the parent’s deployment being uncertain. 

Other considerations 

There are other important considerations that may become particularly relevant in proceedings of this kind: 

  • The Court may look at the history of the ADF parent facilitating a meaningful relationship with the other parent prior to deployment as evidence in support of whether or not this is likely to continue post relocation. 
  • The Court may need to consider whether it is more appropriate for an order to be made for sole parental responsibility, as opposed to an order for equal shared parental responsibility. 
  • Further, the Court may need to consider whether orders should be made in the alternative, providing for a situation where a parent is not ultimately deployed, as well as a situation where future deployments do arise.

As with other relocation matters, the Court will need to consider who will be responsible for meeting the costs of facilitating time with each parent if a child is permitted to move due to the deployment of one parent. In determining this issue, the Court may take into account a number of considerations including the payment of child support (including whether there are any arrears of child support outstanding). 

Obtain advice early 

Deployment decisions can be complex. There are many variables and uncertainties, some of which we have highlighted above. Typically, deployments are not optional and may result in a parent being required to leave their long spanning employment in the ADF if their child is not permitted to relocate with them. 

Given the vast array of circumstances that may arise in a deployment after separation, it is important to obtain advice as soon as the prospect of a future relocation arises. 

For more information or discussion, please contact HopgoodGanim Lawyers’ Family and Relationship Law team

Alison Ross
Alison is a Partner of our Family and Relationship Law practice who works exclusively with HG Private clients.
Kathleen Coggins
Senior Associate
Kathleen is a Senior Associate practising exclusively in Family and Relationship law.
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