It is not uncommon after separation for a parent to want to relocate after separation. There are many reasons for this: employment, wanting to be near family, wanting to start over, wanting to move with a new partner, wanting to escape family violence and more.
What can you do if you want to take the children with you and your former partner will not consent? There are many considerations taken into account by the Court when determining relocation matters, although one size does not fit all families.
Whilst there is no section of the Family Law Act 1975 which specifically deals with the issue of the relocation of a child there are overarching principles and sections of the Act that relate to children and how the Court makes decisions when it comes to disputes relating to children. There are also many cases on the topic of relocation. We can advise you on your situation with these cases in mind.
As in all cases which involve children, the best interests of the child are the paramount consideration. This principle must be at the forefront of any decision or agreement entered into for the care of a child.
In the case of A v A [2000] FAMCA 751 the Court sets out a three step process to be applied in relocation cases:
- Identify the competing proposals for the child’s future;
- Explain the advantages and disadvantages of each proposal by reference to section 60B and 60CC;
- Explain why one proposal is to be preferred referring to which 60CC factors had greater weight. No one factor should be preferred. Neither party has the onus of proof. The parties’ right to freedom of movement is important.
The three steps above are governed by the overarching principle of the best interests of the child. As in all children’s matters the Court is reliant on a list of factors used to determine the best interest of the child contained within s60CC of the Family Law Act. This includes the age and sex of a child, the capacity of each parent to care for the child and the child wishes. Using these guiding principles the Court will review the proposals for the child from each parent.
The reluctance of the Courts to allow relocation of a child, as they have the right to have a meaningful relationship with each parent. The Court will examine the reason behind the relocation and try to understand the benefit to the child for the relocation.
“The Court will not favour a parent taking a child to live a sufficient distance away from the other parent so as to prevent the child from spending time with that other parent if that is the only reason for the move”
If relocation is ordered, often compensations, such as longer periods of time to be spent with the other parent will be offered to ensure that the pre-existing relationship with the other parent is not diminished or harmed as a result of minimised contact. The Court will also consider other supporting family around both parents as the Court recognises the need and benefit of a child being exposed to their extended family.
The same principles apply to relocation overseas. However, the relocating party must be able to demonstrate that they will be able to maintain a meaningful relationship with the child from another country. There are also issues of jurisdiction if the child is removed from Australia, the Court will need to consider their ability to enforce any order when the child has left the jurisdiction of the Australian Courts. As in all family law matters, there is no “one size fits all,” each individual case is carefully considered on its own facts. The Court considers the facts to the best interests of each child and makes determinations for relocation on this basis.
Written by Sarah Damon, Lawyer
If you would like to know more about relocation and how the law might apply to you please contact Sarah Damon on 03 9320 3900 for a complimentary 45 minute confidential meeting.
