Child relocation after separation – the geographical threat undermining parent/child relationships

Few things are more emotionally devastating than family separation. Maintaining a strong parental relationship with a child after separation is difficult, particularly for young children, when they live a significant distance away, inter-state or overseas.

The Family Courts hear many Applications each year of parents seeking to move the children away against the wishes of the other parent, often to be closer to family support, re-marriage or employment opportunities.

What does the law say about relocation?

Family Lawyer and Accredited Specialist, Simone Green explains that when hearing any parenting case, the Family Courts must consider the best interest of the child. As such, each case is decided on its own circumstances. The Courts determine what is in a child’s best interest by considering the factors set out in the Family Law Act 1975 (‘the Act’), particularly the primary considerations found in Section 60CC(2) being:

• the benefit to the child of having a meaningful relationship with both of the child‘s parents; and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Among the additional factors in the Act, and particularly relevant to the issue of relocation is:

• the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

The case of Rochford & Fitzhugh [2019] FamCAFC 218 (21 November 2019) was an appeal to the Full Court of the Family Court against a decision of the trial judge preventing the mother relocating from south east Queensland to South Australia with the 2 year old child of the relationship.

Ms Rochford had originally lived in South Australia and moved with her child from a previous relationship to Queensland where she met Mr Fitzhugh and had a baby. All her family supports were in South Australia, along with her 12-year-old child who had since returned to live with his father there.

At the time of the original trial, the 2-year-old child was spending three days and two nights per week with the father and had a close relationship with him. The mother proposed to facilitate the child to travel to Queensland every second weekend to spend time with the father once she moved to South Australia.

An important factor in this case was that the mother had already demonstrated her ability to maintain a strong relationship with her eldest child and their father in the same circumstances to great success; however, this was not adequately considered by the trial judge.

Interestingly, the majority of the Appeal judges found that the trial judge had failed to adequately consider important pieces of evidence in the case and confused “meaningful relationship” with “optimal relationship”. A parental relationship that is less than optimal in terms of time and distance, can still be “meaningful” and so, the mother won the appeal.

Unfortunately for the mother, winning the appeal does not mean she can pack her bags just yet; the case has been referred for another hearing on the issue in the Federal Circuit Court before a different judge.

Relocation is a complex area of law and requires specialist family law advice. If relocation concerns you or your family, call and speak to the Family Law experts at Streeterlaw today on 02 8197 0105.