Relocation in Family Law
In this three-part series, we examine the issue of Relocation in Family Law.
Relocation cases arise when a parent, following separation, proposes to move (or has moved) with the child(ren) intrastate, interstate or overseas. The parent who lives with the child is called the “residence” parent. Relocation is opposed on the basis it will make regular and quality contact between the non-residence parent and the child(ren) impractical or impossible.
These parenting matters are determined by courts under Part VII of the Family Law Act 1975 (Cth).
Relocation cases are often highly-complicated and contested. They are arguably the “hardest cases” the Family Court deals with. They are often “heart-wrenching, they are difficult, and they do not allow for an easy answer” (Chief Justice Bryant).
What is Relocation?
The concept of ‘relocation’ is not defined in the Family Law Act, nor is relocation a special category of case. They are simply viewed as parenting matters involving relocation, where relocation proposals are considered alongside other parenting issues.
Some of the key points about relocation cases include:
- There is no presumption for, or against relocation. Relocation matters are considered on a case-by-case basis using factors contained in Part VII.
- Relocation cases focus on the promotion of the child’s best interests: “a court must regard the best interests of the child as the paramount consideration” (s 60CA).
- The merits of relocation proposals are determined using the factors outlined in sections 60B and 60CC.
- The ‘reasonable practicality’ of the proposals must also be considered (s 65DAA).
- The Family Law Act does not differentiate between locally, interstate or international relocations. Generally, however, obtaining a relocation order will be more difficult for moves overseas than locally.
- Where possible, courts will favour equal shared parental responsibility. They will seek to maintain the child’s meaningful relationships with both parents (ss 60B(1)(a), 60CC(2)(a), 61DA).
- Courts are not limited to parties’ proposals, since their proposals may not be in the child’s best interests. Courts may make any “parenting order as it thinks proper” (s 65D(1)).
We explore these issues in greater detail in subsequent posts.
Relocation is (usually) concerned with the child’s living arrangements. Parents may be free to move without the child.
Generally, four relocation proposals are available:
- The child and residence parent relocate;
- Neither the child and parent move;
- The child, residence parent and non-residence parent relocate; 0r
- The child stays, but the parent moves. The other parent becomes the residence parent, and vice-versa.
Next time, we examine the meaning of “best interests” and the issue of freedom of movement.
If you need advice in relation to Relocation or another Family Law matter. Martin Bullock Lawyers can help. Call Greg or Jacqueline on (02) 9687 9322.
Family Court of Australia, ‘Relocation and Travel’ (Webpage, 3 May 2016) <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting/relocation-and-travel/>
Family Law Council, Relocation: A report to the Attorney-General (May 2006). <https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Relocation%20report.pdf>
Parkinson, Patrick, Australian Family Law in Context: Commentary and Materials (Lawbook Co., 7th ed, 2019)
Parkinson, Patrick, ‘Freedom of movement in an era of shared parenting: The differences in judicial approaches to relocation’ (2008) 36(2) Federal Law Review 145