Relocation

Relocation cases arise when one parent moves away with a child, who lives with them, without consultation or discussion with the other parent or any arrangements as to the future interactions between the child and the parent left behind. Generally termed “relocation cases”, they, in fact relate to one aspect of the type of parenting orders made by the Court.

Parents relocate for a variety of reasons such as employment, family, new relationships, health, escaping an abusive partner and so on.

Unless there is a Court order, parents generally share parental responsibility equally and consult with each other when making decisions about a child’s long term care welfare and development.

Parenting responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. (Section 61B). You do not need a Court order for this.

When one parent decides to unilaterally make changes to a child’s living arrangements that make it significantly difficult for the other parent to spend time with the child then the Court can make a parenting order to alter shared parental responsibility.

If there is already a parenting order in place, for example, by way of Consent Orders made between the parties, preventing the parent with whom the child lives with from relocating without the consent of the other, then to relocate the child without the other parent’s consent will result in a contravention of the existing order.

The starting point in most relocation cases, as with parenting matters generally, is that both parties must genuinely attempt to resolve the dispute, complying with pre-action procedures such as mediating. However, there are circumstances where the Court may hear an urgent application, even in the absence of the relocating parent; for example, where one parent appears to be fleeing the country with the child or children.

If an application is made, the Court will, when making a parenting relocation order either permit or refuse a party from relocating, having regard to the best interests of the child as the paramount consideration (Section 60CA).

What is in the best interests of the child is determined by regard to Section 60CC which sets out “primary” and “additional” considerations a Court must have regard to.

Primary considerations include the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There are a range of additional considerations including the child’s views, the nature of the child’s relationship with each of its parents and the extent to which each of the child’s parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child.

The Court then has to balance the primary and the additional considerations to derive an outcome that is in the best interests of the child.

Types of orders the Court has made in relocation cases include:

• that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
• that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
• that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
• the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

The Court, in making a parenting order, or proposing to make an order, must apply the presumption of equal shared parental responsibility (Section 61D), unless excluded by reason of abuse or family violence or there is evidence to show that it is not in the best interests of the child for the parties to have equal shared parental responsibility for a child.

Because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case. Obtaining advice from an experienced family lawyer can assist you in determining the strengths of a relocation application or, an application for orders or variation of orders where the other party is seeking to relocate.

If you require assistance with a child custody dispute or a relocation matter, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.