One of the most challenging issues which the Family Court is asked to determine, relates to when a former spouse wishes to relocate with a child against the wishes of the other parent.
The Family Law Act 1975 (Cth) does not expressly deal with the difficult and complex issues which can arise in parenting cases involving the proposed relocation of children.
The case law is, however, very comprehensive in this area, allowing family law practitioners to make a considered assessment about the likely outcome of a specific situation and take appropriate action on behalf of their clients.
The Full Court of the Family Court of Australia (Full Court) and the High Court of Australia (High Court) have given repeated and careful consideration to the approach which must be adopted in determining these difficult cases.
In the decision of A v A: Relocation Approach (2000) FLC 93-035, the Full Court formulated a judgment which serves to guide lower courts when determining parenting cases of this kind. This decision (and subsequent decisions of the Full Court and High Court), affirmed the following principles which a court must consider when one party proposes to relocate with a child of the former relationship:
- If a parent seeks to relocate with a child to a location which would affect the ability of the other parent to spend time with the child, including if the proposed arrangement involves a move to a different country, she or he must demonstrate that the proposed arrangement is in the best interests of the child
- The welfare or best interests of the child is the paramount, but not the only, consideration
- Although the welfare or best interests of the child is the paramount consideration, the court must also have regard to the legitimate proposals advanced by each of the parties to the dispute
- The party who seeks to relocate is not required to demonstrate ‘compelling reasons’ for the relocation
- The court must evaluate the proposals advanced by both parties
- If there is a conflict between the views of the parties and the welfare or best interests of the child, priority must be given to the child’s welfare and rights
In determining whether a proposed relocation is in the best interests of the child, the court will also have regard to the following factors:
- The benefit to the child having a meaningful relationship with both parents
- The need to protect the child from physical or psychological harm and from being subject or exposed to abuse, neglect or family violence
- Any views expressed by the child
- The nature of the relationship the child has with each parent and others
- The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, spending time, communicating with and maintaining the child
- The likely effect of the proposed move on the child
- The practical difficulty and expense of the child spending time with the other parent
- Whether an order which is sought would be least likely to lead to further court proceedings being initiated by the other party
We are available to provide advice and representation, including on an urgent basis, whether you are proposing to relocate with your child, if you wish to restrain a party from relocating with your child, or if you wish to take steps to ensure that your child is returned after she or he has been relocated without your approval (including overseas).
We understand the significance of this issue and will do everything possible to ensure that your parental rights are strongly advocated on your behalf.