Navigating Relocation Matters in Australian Family Law

Navigating Relocation Matters in Australian Family Law

Family dynamics can be complex, and when parents separate or divorce, matters involving children can become even more challenging. Relocation cases, in particular, require careful consideration to ensure that the child’s best interests are prioritised.

In Australia, parenting matters, including relocation, are governed by the Family Law Act 1975 (Cth) (the Act) and decided by the Federal Circuit and Family Court of Australia (the Court).

The cornerstone of any parenting case, including relocation matters, is the paramount consideration of the child’s best interests (s60CA). This principle holds true across all parenting proceedings. When faced with a relocation case, the Court’s primary task is to determine whether it is in the child’s best interests to relocate with one parent.

In assessing the child’s best interests, the Court meticulously weighs all relevant factors and evaluates each parent’s proposals through the lens of the Act. Unless there is an emergency situation, making drastic changes or allowing relocation generally should not occur at an interim hearing. If one party unilaterally decides to relocate without the Court’s consent, it is not uncommon for the Court to order the return of the relocating person and the child. 

If the other parent has unilaterally relocated without your consent, it is important to act quickly if you wish to make a recovery application for the child to be returned to you. The Court will consider the stability of the child in determining such applications. If you wait too late and the child has settled in their new location, the Court may not order the child to be returned to you on an interim basis given the disruption and instability this will cause the child. 

Parental Responsibility

Parental responsibility plays a crucial role in relocation matters. It encompasses the rights, duties, and responsibilities that parents have towards their children. This includes the authority to make decisions on behalf of the child concerning education, healthcare, religion, and the overall long-term welfare and development of the child.

By default, parental responsibility is presumed to be shared between both parents, irrespective of their marital status or living arrangements. This means that both parents have an equal say in significant decisions affecting the child’s life. However, the Court can grant sole responsibility to one parent if it is deemed to be in the child’s best interests.

It is essential to understand that parental responsibility does not automatically equate to equal parenting time or custody rights. While parents may share decision-making authority, the time spent arrangements can vary based on what is determined to be in the child’s best interests.

Spend Time

When considering equal shared parental responsibility, the Court examines whether it is in the child’s best interests to spend equal time with both parents and whether such an arrangement is reasonably practicable (s65DAA; MRR v GR (2010)). If these conditions are met, the Court will consider making an equal time order.

In evaluating the practicability of equal time arrangements, the Court takes into account several factors, including the distance between the parents’ residences, the parents’ present and future capacity to implement such an arrangement, and the potential impact on the child. However, it is important to note that relocation is likely to render equal time arrangements impracticable.

In cases where equal time is not feasible, the Court will consider whether the child should spend substantial and significant time with the non-residential parent. This entails both weekday and weekend time, as well as holiday and non-holiday periods, allowing the non-residential parent to be actively involved in the child’s daily routine and special events. Relocation may make it impracticable for the non-relocating party to have substantial and significant time with the child.

If the Court decides against making orders for equal time or substantial and significant time, it retains the authority to make any order deemed appropriate and in the child’s best interests. Therefore, it is vital to present compelling arguments supported by the specific circumstances of the case.

Best Interests Considerations

To establish the merits of relocation, it is essential to demonstrate that it is in the child’s best interests. The Court determines the child’s best interests based on primary and secondary considerations (s60CC). The primary considerations include the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, neglect or family violence.

While the Court places greater weight on the latter consideration, it is crucial to note that allegations or concerns of abuse, neglect, or family violence must be properly substantiated.

The Court then proceeds to evaluate the secondary considerations, such as the child’s expressed views (taking into account their age and maturity), the nature of the child’s relationships with parents and other significant individuals, each parent’s level of involvement in decision-making, time spent, communication, fulfillment of obligations, likely effects of changes in circumstances, and various other relevant factors.

Obtaining a child’s views and incorporating them into the legal proceedings is another crucial aspect. The Court often orders a family report prepared by a family consultant who interviews the parents and the child to gather information and make recommendations regarding parenting arrangements in the child’s best interests. The weight given to the child’s views depends on their age and maturity, with older children’s views carrying more significance.

Several other relevant factors may come into play during relocation matters. Past cases have acknowledged the importance of a party’s happiness and emotional well-being when determining relocation outcomes. The Court also recognizes that coercive orders should not be made lightly to preserve individuals’ freedom of movement. It is not always necessary to prove a compelling reason for relocation, and the specific circumstances of the case will be carefully considered.

If you find yourself contemplating relocation or if the other parent seeks to relocate, it is crucial to seek guidance from a family lawyer. Our team can provide expert advice tailored to your specific situation, helping you understand your rights and obligations concerning relocating with children.

Contact our office today to schedule a consultation and obtain the guidance you need to navigate relocation matters in family law. 

Written by Savannah Rodgers, Family Lawyer