A parent who wishes to relocate with his or her children to another town/city, state or country must seek the consent of the other parent, where the relocation will limit the time that the child will spend with the other parent. If the other parent is not willing to consent to the proposed relocation, the parent wishing to relocate with the child must obtain a court order permitting the relocation.
There is no specific section of the Family Law Act 1975 (“the Act”) that refers to the issue of relocation. The paramount consideration in relocation cases, as with other parenting cases, is the best interests of the child or children. Relocation cases are often fraught due to the fact that, if the relocation application is successful, it will usually mean that the unsuccessful parent will see significantly less of the children than they previously did, as a result of the relocation.
The Full Court of the Family Court and the High Court have given careful consideration to the approach to be adopted in relocation cases. In 2000 the Family Court delivered its reasons for judgment in A v A: Relocation Approach. This decision is authority for the principle that in reaching a decision in a relocation case:
- The court cannot determine the issue in a way that separates the issue of relocation from that of residence and the best interests of the child.
- Compelling reasons for or against the relocation need to be shown.
- The best interests of the child are to be evaluated, taking into account considerations that include the legitimate interests of both the resident and non-resident parents.
- Neither the applicant nor the respondent has any onus.
- Treating the welfare or best interests of the child is the paramount consideration, however it does not oblige a court to ignore the legitimate interests and desires of the parents. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights.
- If a parent seeks to change arrangements affecting where a child lives or the time the child spends with a parent, he or she must demonstrate that the proposed new arrangement, even if the new arrangement involves a move overseas, is in the best interests of the child.
The 2006 amendments to the Act focus on enabling children to spend regular time and have meaningful relationships with both parents. As a result, these amendments have made it more difficult for a parent to successfully apply to relocate with his or her children, where the move restricts the time that the children can spend with the other parent.
Our team of experienced family lawyers have considerable experience in advising both parents who wish to relocate as well as parents who are proposing relocation. Please call us on +61 3 8397 2220 or contact us if you wish to discuss the issue of relocation.