Part 3 of our three-part Relocation series examines how relocation cases are determined using Part VII of the Family Law Act 1975 (Cth).
Section 60B Objectives and Section 60CC Factors
Sections 60B and 60CC collectively list issues that are relevant to determining the child’s best interests. Best interests are achieved where:
- Children receive adequate and proper parenting from both parents;
- Children are protected from physical or psychological harm;
- Children enjoy their culture;
- Children “spend time … and communicate on a regular basis” with parents and other significant relatives;
- Parents are ‘meaningfully’ involved in their child’s life; and
- Parents share, agree upon, and fulfil their current and future parental duties.
To achieve these goals, courts may consider:
- The child’s views;
- The child’s relationship with their parents;
- A parent’s attitude toward the child;
- How much a parent has, or has not spent time and communicated with the child;
- Whether a parent has participated in making major decisions impacting the child’s long-term welfare;
- The probable effect of the child’s changed circumstances, including their separation from parents and significant others;
- The practical and financial cost of maintaining child-parent relationships;
- The capacity of parents/others to provide for the child’s needs;
- The maturity, sex and background of the child;
- Any family violence issues;
- The prospects an proposal will finalise parenting proceedings; and
- Other matters considered relevant.
(ss 4(1), 4A-4B, 60B, 60CC, 65DAA)
Section 65DAA Considerations
Section 65DAA states that, where parents are to share equal parental responsibility, courts must consider whether spending time with each parent is both “reasonably practicable” and in the child’s “best interests“. If a proposal is both practicable and in best interests, the court may make an appropriate order. If not, the court will consider making an order for the child to spent “substantial and significant time” with the other parent.
Article 7 of the United Nations Convention on the Rights of the Child guarantees, as far as possible, a child’s right “to know and be cared for by his or her parents”. Article 9(1) similarly states that a child “shall not be separated from his or her parents against their will, except when competent authorities …. determine … that such separation is necessary for the [child’s] best interests”.
Other Relocation Issues
- Parents are not required to show compelling reasons for their relocation. However, their relocation proposals will be assessed using section 60B and 60CC factors.
- Whilst relocation orders typically restrain the child, such orders may restrain parents. Parents may not wish to relocate without their children.
- Relocation may be allowed, but delayed for a specified period.
- Residence parents cannot simply sidestep cases by moving the child without a relocation order or the other parent’s consent.
- Courts will not not be “inappropriately fettered by a move which has already occurred” (Morgan and Miles (2007) 38 Fam LR 275 at ). They may issue Recovery or Location Orders for the return of the child and subsequent assessment of relocation proposals.
Relocation is a complex issue, and great care is required when preparing and running these cases.
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