Caroline Overington | May 29, 2009
WIVES who follow their husbands to remote corners of Australia in search of work may find themselves stuck in their new home town, unable to leave with the children.
The Family Court has ruled that new shared-parenting laws, brought in by the Howard government in 2006, mean that the right of a child to have a relationship with both parents trumps the right of a mother to return to her home state, even if she has lived in the new location for less than a year.
In the most recent case, the court ruled that a 34-year-old mother could not leave an "isolated" town in northwest Queensland with her five-year-old daughter after her marriage broke down, because it would rupture the close relationship the girl had with her father.
The case has prompted concern among family law experts that the shared-parenting law is effectively forcing people "back into failed relationships".
Elspeth McInnes, a researcher in family law at the University of South Australia, cited research by the Family Law Council that suggested the right of women to relocate after divorce had essentially been lost, under the amendments to the Family Law Act.
"Previously, judges were prepared to consider the idea that women or mums could go where there is extended family support for them and their children," Ms McInnes said.
"Under the new laws, the meaningful relationship with both parents has moved up (to take greater priority).
"There are still ways to say the child is better served by returning to the town where she was born but basically, judges are telling resident parents, mainly women, that they have to stay put.
"They subordinate women's time with their children around a husband's work demands."
The mother in the northwest Queensland case, known in court transcripts as Mrs Rosa, got married in 2000 and had her child in 2002.
She lived with her husband in Sydney until 2007, when he got a job as a mining engineer in a remote part of Queensland. The town is not named in the transcript, but is described as "isolated".
The Rosas moved up as a family, but after eight months, the husband told the wife that the marriage was over, put her possessions in boxes, and put them on the deck.
Mrs Rosa, 34, took their daughter back to her mother's house in Sydney but the father petitioned the Family Court for their return, saying he wanted to maintain a relationship with his child.
During court proceedings, the mother argued that the father could quit his job and return to Sydney and share custody of their daughter in their home town.
He declined, saying his job had become important and was "interesting".
Under changes to the Family Law Act (1975) adopted by the Howard government in 2006, the Family Court is required to apply the presumption that shared parenting is in a child's best interests, except where there is violence.
The court ruled that the mother could not leave northwest Queensland with the child. She argued that she was isolated and impoverished. She lives in a caravan, because it is the only accommodation she can afford. She appealed to the Full Court of the Family Court, which upheld the decision on May 15.
The federal magistrate said the mother's plan to move would have a "most serious and detrimental effect upon the very close and important relationship that exists (between the daughter and her Dad)".
"In my assessment, the only means by which there can be a proper and appropriate relationship facilitated between this child and both parents is for the child to remain in northwest Queensland," he said.
He accepted the mother's "feelings of isolation and feeling of depression" about being stuck in the town where her marriage ended with little support. She said she would never leave without her daughter.
The federal magistrate had doubts about the mother's willingness to foster a relationship between the father and the child.
Family law academic Barbara Biggs, who last month organised a series of protests in major capital cities to highlight problems with the new Family Law Act, said the shared parenting laws presume that the parents "can co-operate, and get on".
"In many cases, these are couples that can't co-operate over what shelf to put the milk," Ms Biggs said. "It's a dreadful situation, to force a woman to live in a town where she has no family and no work, and to say that's the only way the child can be raised."