Cases involving the proposed relocation of a child are difficult cases for the Court to decide. The Family Law Act does not have specific provisions which deal specially with relocation.
We have therefore analysed the various decisions on relocation to come up with a potted summary of the approaches taken by the Court in deciding relocation cases. Generally speaking, decisions in relocation cases apply the same criteria as for other parenting cases, namely, what is in the best interests of the child. There are two types of considerations which must be taken into account when determining the "best interests of a child": primary considerations and additional considerations.
Primary considerations are the most important to consider for issues such as relocation. There are two primary considerations:
- First, the benefit to the child of having a meaningful relationship with both of the child's parents. This requires the Court to consider whether the proposed relocation will impede the child's ability to maintain a relationship with the non-relocating parent. The effect is compounded where the proposed relocation is an overseas one. If such a move is permitted to take place then the relocating parent will inevitably assume a greater role and presence in a child's life. Conversely, contact between the child and the non-relocating parent will become less frequent and less regular. Their relationship may suffer because of distance and difficulties in communication and organising direct contact. As a result, one or other of the parents will understandably feel aggrieved whatever the Court decides.
- Second, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. This is relevant if the relocating parent can show that it is best for the child to live far from the non-relocating parent to protect them particularly in instances of past abuse toward the child from a parent.
The child's best interests remain the paramount consideration, but they are not the sole consideration
- the child's views and factors which might affect those views, such as the child's maturity and level of understanding;
- the status quo and reasons why the custodial parent wants to relocate. Note that a parent wishing to move does not need to demonstrate "compelling" reasons. If the relocating parent can show a good reason, for example, better job prospects in the other location or moving to cement a new relationship, the Court will find this more convincing than if the parent wants to move for a change of scene. If the relocating parent intends to move because of the actions of the other parent, she will need to show evidence of those actions and their effect on herself, her parenting and the children;
- the degree of involvement of the non-relocating parent with the child. The Court may be more inclined to allow relocation where the other parent has little or no contact with the children or there is a history of domestic violence in the relationship. If the child has regular and frequent contact with both parents and both parents are actively involved with child, it will be more difficult to persuade the Court to allow a long-distance move;
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
- technology and phone contact. In some cases modern technology like Skype can facilitate a meaningful relationship between a child and parent where the parent and child already have a strong bond that can survive the relocation;
- the relocating parent's "freedom of movement." A party's right to freedom of movement is important. The child's best interests will be weighed and balanced with the "right" of the proposed relocating parent to freedom of movement. However, if necessary, the right to freedom of movement can be outweighed by the Court deciding that there is a need to order an arrangement that is inconsistent with that right but is in the best interests of the child;
- the happiness of the relocating parent. The state of mind and mental health of the parent wishing to relocate will be important. If the relocating parent is the primary carer and has the child residing with them, the Court will consider whether the parent's mental health would negatively affect their ability to parent if their request to relocate was refused;
- the competing proposals of the parties. The Court will evaluate each of the proposals for the children's living arrangements advanced by each parent. It is not simply a matter of comparing the relocating party's proposal against the status quo and allowing or denying relocation. Rather, the Court must consider each party's proposal on its own merits, in accordance with the prescribed legislation. If there is conflict between these considerations, the Court will prioritise the child's welfare. However, the child's welfare will not be viewed as a separate abstract concept from the circumstances of the parent with whom the child resides;
While the Court must consider the proposals presented by the parties, the Court may also be required to come up with alternative proposals in the child's best interests. Although the Court is not bound by the parties' proposals, it must not order an arrangement that the parties have not sought without giving reasonable notice and giving the parties an opportunity to be heard in relation to the arrangement;
- whether the relocating parent has family in the existing location;
- whether the relocating parent has family and/or a new relationship in the new location;
- whether the non-relocating parent is able to move. In an appropriate case, the Court may ask whether the party who opposes the proposed relocation can move to a place which is close (or closer) to where the child will be living if the relocation goes ahead;
- whether there are other children involved in either current or new location;
- the financial implications or career implications of a move; and
- the cost and practical difficulty of the non-relocating parent spending time with and communicating with the child;
- the extent to which each parent has or has not previously met their parental responsibilities (for example, not paying child support); and
- any events or circumstances since separation.
As you can see, the legislation requires the Court to consider many factors, but does not provide guidance as to the order in which such matters are to be considered, or what weight is to be attached. Note that the legislation does not require consideration of the relevant factors in any particular order.
Each case is decided based on the unique facts of the particular case. The discretionary nature of determining the child's "best interests" means that it is difficult for parties seeking relocation to navigate the process on their own.
If you are thinking about relocating with your child intra-state, inter-state or overseas, it is essential that you receive Family Law advice early on to determine the best course of action. You may contact our Family Law team at HHG who can provide advice tailored to your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.