High Court gives some clarity to relocation of children of divorced parents

10-January-2014 Family Law By Simone Green

‘Relocation’ of children following a separation is a very hot and controversial issue for many parents and a common theme of applications to the Family Court.
One parent may seek to move away for various reasons including financial hardship, to be closer to family, a new relationship or for employment reasons. Problems arise when both parents don’t agree to the move.

The High Court had the opportunity to review the issue in the matter of MRR v GR in March 2010. In that famous matter, the mother was essentially ‘stuck’ in Mount Isa with her child due to the father’s employment in the mines and had been denied the opportunity by the Family Court to relocate with her child, despite her financial situation, lack of family support and general unhappiness.

The High Court found appealable error in that the trial judge had not considered whether the orders were ‘reasonably practical’ and sent it back to the lower court for rehearing. While the High Court clarified that the Court needs to take very careful note of the provisions of the Family Law Act when making orders, there was no real direction given for relocation matters.

Relocation issues essentially depend on the individual circumstances of each case and are examined in light of what is in the best interests of the affected child.

Streeterlaw Family Law specialist Simone Green said the one thing a parent must do before relocating is to get the consent of the other parent.

“There are no hard and fast rules which apply to relocation with children, except perhaps that it should never be done unilaterally and without the express written consent of the other parent,” she said.

“The case of Cavanagh v Kennedy is interesting because it concerned a “relocation” of a child to a new home only one-and-a-half hours’ drive away from the child’s original home; relocation matters generally involve much larger distances.

“The Court shied away from determining whether this particular matter constituted ‘relocation’ on distance alone as the Court was able to find a contravention of an existing order made the previous year which injuncted both parties from removing the child from the locality, without the express written permission of the other parent.

In the case, the mother unilaterally removed the child after having allegedly said she could no longer afford to remain living in the current location with the child following the property settlement. The husband received the house in the property split and had transferred a cash sum to the wife who then argued she could not afford to pay the rental expected for a home within the radius encompassed by the orders.

Prior to the relocation, the child was spending time between two households, with the father having the child for blocks of three days in each period where he had rostered days off of four days. The relocation of the child by the mother made this continued arrangement unworkable given the travel distance between the households. The judge ordered the mother to move the child back to the local area within one month.

“Relocating with a child without the permission of the other parent will often lead to a legal challenge,” Ms Green said. “To relocate successfully, parents are advised to seek advice from an experienced family lawyer prior to doing so.”

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