Relocation cases are among the most challenging disputes in Australian family law. They involve one parent’s desire or need to move with their child a significant distance away from the other parent, potentially disrupting the child’s relationship with both parents. Such decisions raise complex legal and emotional questions, requiring careful consideration of the best interests of the child.
Legal Framework for Relocation in Australia
Under Australian family law, relocation cases fall under the jurisdiction of the Family Law Act 1975 (Cth). The Act does not provide specific provisions for relocation but operates under the general principle that the child’s best interests are the paramount consideration. This principle applies to all parenting disputes, including those involving relocation.
Consent or Court Approval
If a parent wishes to relocate with their child:
- Consent from the other parent is required. Both parents are typically expected to make major decisions regarding their child jointly, including decisions about relocation.
- If consent cannot be obtained, the parent seeking to relocate must apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a court order permitting the move.
Factors Considered by the Court
When deciding whether to allow a parent to relocate with a child, the court examines various factors to determine what arrangement serves the child’s best interests. These include:
- The child’s relationship with both parents and other significant individuals in their life.
- The practicality of maintaining the child’s relationship with the non-relocating parent post-move.
- The reasons for the relocation, such as employment, family support, or lifestyle changes.
- The impact of the relocation on the child’s emotional and psychological wellbeing.
- The child’s views, depending on their age and maturity.
The court strives to balance the relocating parent’s right to freedom of movement with the non-relocating parent’s right to maintain a meaningful relationship with the child.
Remedies for the Non-Relocating Parent
If a parent relocates without consent or a court order, the non-relocating parent has several legal remedies:
- Apply for a Recovery Order: The non-relocating parent can seek a recovery order to return the child to their original location if the move is deemed contrary to their best interests.
- Amendment to Parenting Orders: The parent may apply to the court to modify existing parenting orders to reflect the new circumstances, such as increased time with the child or adjustments to living arrangements.
- Injunction to Prevent Relocation: If there is a risk that one parent might relocate without permission, the non-relocating parent can apply for an injunction to prevent the move.
Practical Considerations
Relocation disputes are emotionally charged and can be costly. To minimize conflict, parents are encouraged to explore alternative dispute resolution (ADR) methods, such as mediation, to reach an agreement. Courts generally view cooperative parenting arrangements favorably and may prioritize solutions that ensure both parents remain actively involved in the child’s life.
Conclusion
Relocating with a child in Australia involves navigating complex legal requirements centered on the child’s best interests. While parents have the freedom to seek new opportunities, this right is balanced against the need to maintain the child’s relationship with both parents. For the non-relocating parent, legal remedies exist to address unauthorized moves or negotiate changes to existing arrangements.
Michael Vassili Lawyers family law team are on call to provide an initial first interview . Call us on 1300557819. We have 35 years experience in family law.
