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Emergency relocation

Information about what happens when one parent has to move urgently because of family violence.

Violence, abuse and other immediate risk of serious harm to children can be a basis to justify breaking court orders or a long established contact routine and moving children away. The risk of harm must be immediate and quite serious.

This issue is discussed in the Full Court Appeal decision of Deiter & Deiter.

Facts: In this case, a mother with 3 young children aged between 1 and 5, moved interstate to be with her parents because of the father's family violence.

The mother and children returned home to Sydney after a Christmas holiday in Perth with the maternal grandparents. The couple argued and violence was witnessed by the children. The father was charged with assault and the mother was granted an interim family violence order. The mother returned to Perth before that order was made.

The mother appealed an interim parenting order, which required the mother to return the children to Sydney pending a final hearing.

Held: The Full Court of the Family Court took the view that the magistrate should have considered the likely delay in setting the matter down for a hearing, including prospects for an expedited final hearing. They also found that the mother was required to live in Sydney without holding a specially convened hearing to deal first with the mother's allegations of family violence. More weight should have been placed on the mother's evidence. This was needed to assess the risks. Had that weight been given to that evidence, the court may have considered that it outweighed the other benefits it saw as being associated with returning the children to Sydney. While it is possible that the father had a good relationship with the children and there would be an adverse impact on the children of being further separated from them, this could not be taken as given.

See Deiter & Deiter [2011] FamCAFC 82 (12 April 2011).

What risk assessment involves

Risk assessment involves:

  • predicting the likelihood of harmful events happening, and
  • consideration of the severity of the impact caused by those events.

See ¶ 60-61 in Deiter & Deiter [2011] FamCAFC 82 (12 April 2011).

More information

Case

Deiter & Deiter [2011] FamCAFC 82 (12 April 2011)

Facts: In this case a mother with 3 young children, aged between 1 and 5, moved interstate to be with her parents because of the father's violence. The mother and children returned home to Sydney after a Christmas holiday in Perth with the maternal grandparents. The couple argued and violence was witnessed by the children. The father was charged with assault and the mother was granted an interim family violence order. The mother returned to Perth before that order was made.

The mother appealed an interim parenting order which required the mother to return the children to Sydney pending a final hearing.

Held: The Full Court of the Family Court took the view that the magistrate should have given consideration to the likely delay in setting the matter down for a hearing, including prospects for an expedited final hearing. They also found that 'the mother was required to live in Sydney without holding a specially convened hearing to deal first with the mother's allegations of family violence. More weight should have been placed on the mother's evidence. This was needed in order to assess the risks. Had that weight been given to that evidence, the court may have considered that it outweighed the other benefits it saw as being associated with returning the children to Sydney. While it is possible that the father had a good relationship with the children and there would be an adverse impact on the children of being further separated from them, this could not be taken as given.

The court then went on to say how risk assessment should be carried out.

See Deiter & Deiter [2011] FamCAFC 82 (12 April 2011).

Updated