There are many reasons why a parent may want to relocate from their current location with their children following a separation.
If a parent wants to relocate to a place far enough away from their current location that it impacts on the time the other parents spends with the children, the parent wishing to relocate must seek the consent of the other parent to do so. If a dispute arises because the second parent is not willing to consent to the proposed relocation, then the parent wishing to relocate will have to make an application to Court under the Family Law Act 1975 seeking that they be allowed to relocate with the children (“child relocation order”).
For example the mother is from another state or country and, following separation, wishes to return to that state or country with the children where she has greater family support she must obtain the consent of the father of the children to that relocation or issue Court proceedings asking the Court to make a children relocation order.
What is the law around child relocation?
There is not specific section of the Family Law Act 1975 that refers to the issue of relocation. The paramount consideration in child relocation cases, as with other parenting cases, is the best interest of the children. How a Court determines what is in the best interest of the children is set out in Section 60CC of the Family Law Act. Section 60CC sets out a number of considerations that a Court must consider.
A significant body of caselaw as been developed over the years by the Courts relating to child relocation cases.
A V A: Relocation Approach
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.
In 2002 the High Court decided the case of U v U in which the mother wants to relocate to India with her children. The High Court confirmed that the appropriate approach when dealing with child relocation cases was the one set out in A v A: Relocation Approach. The High Court also held that it was not bound by the proposals of the parties and could make orders not sort by either of them.
In the 2005, case of Bolitho v Cohen the trial judge made orders permitting the father to relocate to Japan with the two children of the relationship. He found that their maturity meant that their wish to live in Japan with their father should be taken into account. The mother appealed but was unsuccessful. The Full Court of the Family Court confirmed that the correct approach to deciding a child relocation was that set out in the A v A: Relocation Approach and confirmed that the overarching issue was to ensure that the order was in the best interest of the children. The Full Court stated that the proper approach is to weigh the competing proposals and ultimately make a decision in the best interest of the children.
In the 2005 Full Court Decision of H v H the mother sought to relocate from a rural region in Southern New South Wales to Adelaide. She found living in the region isolating and distressing and she was extremely unhappy and devoid of support. The Court made the order sought by the mother and noted that a finding that the relocation would reduce the children’s contact and diminish the relationship with their father could not determine the case.
Child Relocation cases since introduction of the Family Law Amendment (Shared Parenting Responsibility) Act 2006
In 2006 the Family Law Amendment (Shared Parenting Responsibility) Act 2006 was introduced with the legislative intent in favour of substantial involvement of both parents in the lives of the children. The 2007 case of M v S was the first case decided after the introduction of the Amendment Act. The mother proposed to relocate to the UK with the child’s 8 year old daughter for a period of three years. The mother and child lived in Melbourne and the father lived in Canberra. The child spent time with the father for two weekends each term in half the school holidays. The Court concluded that there was nothing in the new legislation which expressly alters the previous approach to relocation except that there is now a legislative intent in favour of substantial involvement of both parents.
In 2007 case of Taylor v Barker the father of appealed against orders allowing the child’s mother to relocate with the child from Canberra to North Queensland. The Full Court of the Family Court concluded that the trial judge correctly endeavoured first to consider without regard to the relocation proposal whether it was in the child’s best interest to spend equal time with each parent as was required after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006. When he concluded that is was not in the child’s best interest to spend equal time, he did not need to consider whether equal time was reasonably practicable.
In the 2009 case of McCall v Clark the members of the Full Court considered the meaning of “meaningful relationship”. They took the view that the trial judge failed to consider how the child could maintain a meaningful relationship with the father on the mother’s proposal without the child live with her in Dubai.
In the 2010 case of Hepburn v Nobel the Full Court of the Family Court discussed whether the application of the principles in A v A: Relocation Approach is appropriate in light of the amendments introduced by the Family Law Amendment (Share Parental Responsibility) Act 2006. The Full Court held concerns that the decision in the case A v A: Relocation Approach was still being referred to, given that the Family Law Act had been substantially amended since the judgment in A v A: Relocation Approach and that there had been a number of significant decisions of the Full Court of the Family Court addressing the every issue of relocation since the amendments to the Act. They noted that it would be more relevant for the trial Judge to have had regard to guidelines and principles from subsequent Full Court of the Family Court decisions such as Taylor v Barker and McCall v Clark.
In summary, the caselaw in relation to relocation cases has evolved over time. The case of A v A: Relocation Approach was the leading case until the 2006 amendments were introduced to the Family Law Act. The guidelines and principles in the caselaw since the 2006 have become more relevant. Relocation cases are often fraught and complex and difficult for the Courts to decide and it is important to seek advice from a lawyer experienced in child relocation cases if you are either seeking a child relocation order or opposing a child relocation order.
How Can Farrell Family Lawyers Help with Child Relocation?
Our lawyers are experienced in International Child Relocation matters as well as matters relating to proposed Interstate Child Relocation matters and proposed Child Relocations within the State of Victoria. We are able to advise you about the prospects of success of the parent who wishes to relocate with the children, whether it is you or whether it is your ex-partner who wishes to relocate. Call one of our experienced family lawyers on (03 8393 0144) for an obligation free discussion about your Child Relocation matter.