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CASEWATCH - Full Court decision handed down today

In a decision handed down 16 August 2016, the Full Court has restated and clarified the power of a Court to make coercive parenting orders where the primary carer of children is not in dispute.

In a decision handed down 16 August 2016, the Full Court has restated and clarified the power of a Court to make coercive parenting orders where the primary carer of children is not in dispute.
The media neutral citation is not yet available.

"16. It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is "at the extreme end of the discretionary range" and there should exist "rare" or "extreme" factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.

"17.  Consequently, as emphasised by the Full Court in D and SV6 and by the Full Court in Sampson and Hartnett (No 10), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party's proposal, and involve a primary caregiver undertaking that role in a place not of that parent's choosing."


In my view, the importance of decisions at the first return or interim stage of proceedings take on renewed significance.

The well documented delays in obtaining the preparation and return of reports and final hearings, creates a situation where a party could live for a considerable time in a new location. The prospects of obtaining a coercive order become less likely. The relocating party (in addition to establishing those matters suggested in Morgan v Miles) would be wise to put on evidence about the availability, cost or expediency of return of the report.

The lack of such evidence and the prejudice encountered by the non-relocating party by such decision above should be an additional submission made against permitting the move on an interim basis.

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