Relocation of children in parenting disputes still comes down to what is in the child’s best interest

When parenting disputes come before the Federal Circuit Court of Australia or the Family Court of Australia, parents are usually seeking to determine the amount of time children are to spend with each parent, how the children are to communicate with their parents (eg. by telephone, email, Skype) and where the children are primarily to live.

One of the more complex issues that can arise in parenting disputes is when one party, usually the primary carer for the children, 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 to a location, which would limit the other parent’s time and communication with the children.

Below is information relating to the court’s approach to relocating children, what the Family Law Act says about relocation, the importance of establishing the consent of the other parent to relocate and how parents should approach the legal aspects of an interim relocation (as opposed to a final relocation).

The court’s approach to parenting matters, including relocation matters

Equal Shared Parental Responsibility

“Parental responsibility” relates to all the duties, powers, responsibilities and authority that parents have in relation to their children.

When making parenting orders, the Court usually presumes that it is in the best interest of the children for the parents to have equal shared parental responsibility. The presumption relates solely to the allocation of “parental responsibility” for a child and does not relate to the child spending equal time with each of the parents.

In cases where there is evidence of child abuse or family violence, the presumption of “equal shared parental responsibility” does not apply.

Equal time and substantial significant time

If a Parenting Order provides that parents are to have equal shared parental responsibility, the Court must consider whether it is in the child’s best interest to spend equal time with each of the parents and also whether it is reasonably practical to do so.

If the Court comes to the conclusion that it is not in the best interest of the child to spend equal time with each of the parents, the Court must then consider how the child is to spend substantial and significant time with each of the parents.

Equal time equates to a scenario where each parent has the same number of nights with the children on a fortnightly regime, whereas substantial significant time usually equates to that time being a little less than equal time, usually with one parent having the children for about four or five nights per fortnight.

In matters concerning relocation, the best interest of the children remains the paramount consideration. The Family Law Act sets out various facts that the Court must take into account, those factors being broken down into primary considerations and additional considerations. The primary considerations are centred around the idea that children are to have a meaningful relationship with each of their parents and children are to be protected from physical or psychological harm. The additional considerations include views expressed by the children, the nature of the children’s relationship with each of the parents and other significant relatives, the sex, maturity and lifestyle background of the children and the capacity of the parents to care and promote the needs of the children.

The relocating parent can overcome the argument put forward by the other parent that the proposed relocation would affect their relationship with the children.

In a recent relocation case – Heaton and Heaton [2014] FAMCA 761 – the judge noted that “on behalf of the father, it was submitted that McCall and Clarke … supported the proposition that if the father shared anything less than the full gamut of experiences with his child, the relationship between them will not be meaningful. In my view, these decisions are not authority for this proposition”.

The Court decided in this case that although the husband was not able to be involved in the everyday experiences of the children due to the mother’s proposed relocation, this did not mean that he would fail to have a meaningful relationship with each of the children. It therefore follows that the relocating parent can overcome the argument put forward by the other parent that the proposed relocation would affect their relationship with the children.

Does the Family Law Act make specific reference to relocation?

There is no section of the Family Law Act that sets out how a Court is to determine a relocation matter. However, as set out above, the Court must consider the fundamentals set out in the Family Law Act, being parental responsibility and the issue of time for each parent to spend with their children.

However, following various cases, it is well settled that in reaching a decision with respect to relocation, the following general principles apply:-

1. The Court cannot separate the issue of relocation from that of residence and the best interests of the child;
2. Compelling reasons for or against a relocation do not need to be shown;
3. The best interest of the children are to be evaluated, taking into account the legitimate interests of both the resident and non-resident parent;
4. Neither the Applicant nor the Respondent bears an onus;
5. Treating the welfare of the best interests of the children is the paramount consideration;
6. If a parent seeks to change arrangements affecting the residence of their children, he or she should demonstrate that the proposed new arrangement, even if it includes moving overseas, is in the best interest of the children;
7. The Court must keep in mind that each party has a right to free movement.

As you can imagine, there have been many cases decided on the issue of relocation, some cases where relocation has been granted and some cases where relocation has been refused. Each case is different and each case is treated on its facts.

The importance of establishing the consent of the other parent to relocate

In Wadsworth and Gale [2009] FMCA FAM 537, the Court dealt with the issue of consent. It was held in that case that consent to relocate overcomes the issue of a unilateral relocation and thus, does not infringe on a parent’s rights under the Family Law Act

In other words, if it is established that consent was given to the proposed relocation, then this consent can support the parent who wishes to relocate.

Interim relocation as opposed to final relocation

Streeterlaw explains how the client is 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.

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

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.

Streeterlaw comment

Streeterlaw said 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.