Interim relocation of children can be key to success in final relocation

One of the more complex issues that can arise in parenting disputes is when one party wishes to “relocate” the children’s residence to a new, more distant location. In most cases, this means the non-resident parent may feel disadvantaged by not being in close proximity to their children. In these circumstances, the court is faced with making a decision as to whether to allow the parent and his/her children to relocate.

One of the key considerations in relocation cases is what happens in the interim. And commonly, what is acceptable in the interim (for example, moving interstate for a few months) may be seen in the court’s eyes as being acceptable on a permanent basis. Streeterlaw explains how the client intended to permanently relocate the residence of her only child from Cairns to Sydney.

On an interim basis, the court allowed the mother to stay in Sydney with the child (in accordance with her proposal) as the Judge did not want to interfere with the current status quo (as the child had already begun living in Sydney). The main reason for this is that the court could offer a final hearing within a matter of months.

This case demonstrates that there are situations where the Court will not make an order to return a child to his or her primary location when the child has already moved to another location and the Court can determine the issue on a final basis within a short timeframe. The idea is that the child is not “put out” of his or her routine.

In the case mentioned above, Streeterlaw relied on was a Full Court decision in Deiter and Deiter [2011] FAMCAFC 82 where the Court found that:-

1. The Court is entitled to look at the duration of any interim arrangement that has been in place;
2. The acting Magistrate had placed too much weight on the issue of meaningful relationship pending final hearing;
3. The Court erred in not looking at the father’s ability to move to the mother’s new place of residence;
4. The Court had failed to place sufficient weight to the fact that the child had settled in a new routine;
5. The Court failed to give proper consideration to the fact that the mother would clearly be more secure and happier living in her new residence, which in turn must be positive for the child;
6. That the mother would struggle if ordered to return to the place that she had left with the child.

Whether you are the parent wishing to relocate or the parent wishing to oppose a relocation, you should seek legal advice.

It is imperative that the evidence presented to the Court on an interim basis contains all necessary elements to satisfy the Court of your proposal. It is very important to try and achieve the best possible result on an interim basis as this could affect the result on a final basis. While many people may criticise this view, it is clear that a ‘win’ on an interim basis could mean a ‘win’ on a final basis as the Court grapples with preserving the status quo.

Streeterlaw’s Family Law solicitors are equipped with the knowledge and experience to provide you with the best possible advice in relation to relocation. Please contact one of our experts on 8197 0105 or email advice@streeterlaw.com.au.