Being a firm that specialises exclusively in family law, we at SBFL have extensive experience in parenting and children’s matters, including matters where a relocation of the children’s residence is proposed. Relocation cases are complex and highly emotional and have a significant impact on all parties involved. Our lawyers are compassionate, empathic and have a high level of skill to assist you in achieving the best possible outcome.
Relocation of children is one of the most difficult issues for a court to determine. In many circumstances following separation one parent may wish to relocate as a consequence of money difficulties, a new relationship or job opportunities.
Although the term ‘relocation’ often conjures images of international or interstate relocation, the reality of the vast landscape of Australia means that moves intrastate can often be viewed as a relocation. There is no definition of what constitutes a ‘relocation’, however usually the issue of relocation will generally arise in circumstances where one parent wishes to move residence to a place that is far enough away to affect the time the children spend with the other parent. Therefore relocation may be a move from Sydney to the Central Coast or as far away as overseas.
Judges of the Family Court of Australia and Federal Circuit Court of Australia often remark that relocation cases are among the most arduous cases they have to determine. This is because the Family Law Act 1975 does not specify how or when relocation of travel should be allowed.
One of the most important things to remember is that the Family Court has no power to determine where an adult lives. It does, however, have jurisdiction to deal with where a child may live. Therefore, a court will not stop an adult from relocating – but they may have to move without the children.
The next thing to be aware of is the court makes all decisions relating to children in accordance with what is in their best interests. It is not about the advantage to the parent proposing the move, or what the parent opposing the move may miss out on should the children move. It is about whether it is in the children’s best interests to move or not.
So how is that determined? The 2 primary considerations for the court must consider when determining a child’s best interests are
1. The benefit to the child of having a meaningful relationship with both 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.
2. 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 court will look at a number of other factors, including, but not limited to, the following:-
A. The nature of the relationship between the children and both parents, including who has cared for them in the past, and does so now.
B. The time that the non moving parent would be able to spend with the children should they move (noting that the court is more concerned about the quality of the relationship than the quantity of the time)
C. The children’s wishes (which are given more weight the older a child is)
D. Each parent’s circumstances (the reason they are moving, whether they have re partnered, their financial situation, the support provided by the other parent, how their relationship with the children may be affected should they not be permitted to move)
E. The capacity of the non moving parent to care for the children should the other parent relocate without them
F. Whether equal shared parental responsibility should be ordered, and what arrangements are reasonably practicable in terms of the care of the children
That list is by no means exhaustive, and each matter will be decided by reference to its unique circumstances.
If parents are unable to reach an agreement in relation to relocation one parent may make an application to the Court seeking permission to relocate with the children. It is recommended that such an Application be made before relocating as generally one parent cannot relocate with the children without the consent of the other parent. If one parent relocates with the children without the other parent’s consent, an application can be made for the children to be returned until the Court makes a final decision about the relocation.
Whilst there is clear authority as to how relocation matters are decided by the court in terms of the application of the law, it is the application of the facts and the way in which they are presented that will have the biggest effect on whether to allow a parent to move or not.
That is why, to ensure that your case is presented in the way most likely to assist you, it is crucial that you seek the assistance of an Accredited Specialist in Family Law. If you need further advice please contact Sarah Bevan Family Lawyers 1300 007 235 our family lawyers are available in Crows Nest, Surry Hills or Parramatta offices