A relocation dispute in the context of parental separation, is often one of the most painful areas of litigation. Almost consistently both parents are committed, and loving parents, whom simply are pulled by life and circumstance in two very disparate geographic directions. Whether it is to another town, state or country, relocation can have profound effects on all parties involved, including most importantly a child. In 2005 the Standing Committee on Legal and Constitutional Affairs tabled a report on changes to the Family Law Act. The report, entitled Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 dealt with many issues, one issue of considerable concern was relocation. Chief Justice Bryant gave evidence before the committee, where her Honour noted:
Relocation cases are the hardest cases that the court does, unquestionably. If you read the judgments, in almost every judgment at first instance and by the full court you will see the comment that these cases are heart-wrenching, they are difficult and they do not allow for an easy answer. Internationally, they pose exactly the same problems as they pose in Australia. I have heard them described as cases which pose a dilemma rather than a problem: a problem can be solved: a dilemma is insoluble
What is Relocation?
Many parents following a separation will move to another town, city or even country There is very little restriction, per se, on the rights of an adult to live where they choose. A `relocation’ dispute emerges where the relocating parent believes that the child of the relationship is best placed with them in the new location, and the other parent disagrees. Whilst often referred to as a specific category of case, the Family Law Act (the Act) does not specifically address relocation as a concept. Accordingly, relocation is dealt with under the general principles guiding the resolution of parenting matters in the Act.
Despite the specific proposals of the parties, the Court is at liberty to consider any arrangement for the child assuming that, on the evidence available, the outcome is in the best interests of a child and reasonably practicable. Whilst a Court cannot necessarily require a parent to remain living in a specific location, in many respects the Court will engineer such an outcome by refusing permission for a child to live with the relocating parent should they move away.
Going to Court
If one parent wishes to relocate with a child and both parties cannot come to an agreement, the court will ultimately have to make a decision in regards to the child’s living arrangements. Like any parenting dispute, the Court will be required to make findings relevant to what proposal most aptly accommodates the best interests of a child.
We strongly recommend that you give due consideration to the following issues in the context of mediation before proceedings are initiated:
- Is there a way of maintaining the current significance of time spent between residences in the context of the change in residential location of one parent ?
- Could the `left behind’ parent potentially consider relocation with the other parent and child ?
- What impact will any change having upon the child ?
- Is it realistic for the child to potentially live with the parent not relocating?
- Is the child of an age where they have specific wishes which should be afforded weight ?
- What are the reasons for the parent wanting the move ?
- What is proposed by way of a new school, and living arrangements ?
- Is there potential for an agreement to a short term relocation ?
- How can the difficulty and expense of travel between new residential locations be mitigated, and will the cost prohibit time ?
- How strong is the relationship between the child and each parent now ?
- What capacity will the child have to communicate by electronic means, including telephone, messaging, and skype ?
- What attitude have both parents taken to the facilitation of time and meeting the responsibilities of parenthood in the past ?
- Is it reasonably practicable to require a parent to remain living where they are ? Will they emotionally and financially be able to cope ?
It is our experience that where parents have positively facilitated each other’s relationship with the child in the past, permission to relocate a child is more likely. The Court is likely to have significant concern as to the capacity of a parent to facilitate a relationship whilst living a significant distance apart from each other, if the relationship has not been promoted whilst living in the same town.
The High Court has ruled that in addition to considering whether an outcome would be in the best interests of a child, the Court must consider whether it is reasonably practicable to require a parent to remain living with a child in a location against their wishes. In considering issues of practicability, the High Court pointed to some of the considerations set out above, such as the availability of affordable and appropriate housing, employment and family support, as well as the impact of an Order to remain in the location upon the emotional and mental health and wellbeing of each of the parents.
Seek Legal Advice
Relocation cases are particularly difficult and given their complexity representation is often essential. Best Wilson Buckley Family Law can act on your behalf if you wish to negotiate your relocation, or if you wish to seek the residence of a child where the other parent is moving away.