Can you Relocate while Pregnant?

Following the breakdown of a relationship, one party often wants to make a “fresh start” or has other reasons, for wanting to relocate from the town or region where they lived with their spouse during the relationship. If there are no children of the relationship, that party can relocate wherever they want. If there are children of the relationship, both parties are to agree on whether the children should  relocate from the town or region which has been their home. Recently, however a case was heard in the Family Courts in relation to a case involving one party who had relocated whilst pregnant. What happens in that situation?

The Facts

1. The mother and father began a relationship in May 2017 and separated in September 2017

2. During the relationship, the mother and father lived in the Northern Territory

3. At the time of separation, the mother immediately went to live with her family in New South Wales – before relocating to Queensland. At the time the mother relocated to Queensland, she remained pregnant and had not given birth.

4. The baby was born in Queensland

The Decision

The first Judge made an Order that the mother return with the child to New South Wales. The mother appealed. The Appeal Court found that the primary judge regarding the issue before her as a “relocation case” led her to make significant errors of law. The mother’s appeal was successful on the basis that the primary judge had made errors of law; and the Orders made by the primary judge were set aside. 

The Lesson

The Appeal Court noted that the child had never been resident of New South Wales. The Appeal Court said that, properly considered, the father’s application was for the child to be brought to New South Wales so that the father and child could have a relationship. The Court found that the primary Judge had not considered the ability of the father to have a relationship with the child in Queensland, had not properly considered the mother’s evidence and also made orders that were not supported by the evidence. 

The case therefore demonstrates the necessity of having evidence before the Court about the child’s place of residence and properly formulating Orders that are supported by the evidence. 

This case is an extrapolation upon the Court’s long held view that where a person is pregnant, that individual’s right to liberty is paramount to the rights of an unborn child.