It is becoming increasingly common and easy for families to relocate given our growing mobile society. The situation becomes difficult where one parent in a separated relationship, usually the one with primary care of the child, decides to move with the child to a different state, city or even to a different country and by default away from the other parent. As a result, these types of disputes are becoming more common and are often are source of litigation for separated parents. It is important for families considering the ‘move’ to think of the implications on both the children and the other parent(s) involved in the process.
The Best Interests of the Child
When considering children’s matters, the paramount concern for the Court as prescribed in the Family Law Act (Cth) is what is in the best interest of the child or children involved. This may not always align with the views and wishes of a parent, particularly with what they believe will benefit the child involved. Unfortunately, in the eyes of the Court, a parent’s freedom to relocate will be overridden by the general welfare of a child and any adverse move on a child will not be looked upon favourably by a Court.
When is relocation acceptable?
Relocation may be acceptable in circumstances where the parent without primary care of the child (i.e. who spends time with the children during school holidays) has relocated away to a different location. In this instance, the parent who has primary care of the child/children may also relocate to another location. If the parties are unlikely to incur additional travel costs, and time with the children remains largely unchanged, there is no reason why relocation should not occur.
The circumstances become more difficult and highly controversial between parties where parenting arrangements are more complicated, particularly where the parent without primary care spends significant amounts of time with the child and they enjoy a close relationship. A further factor is where extended family members are involved in the role of caring and nurturing for the child and the child maintains close relationship with these parties.
Additionally, the age of a child will be a determining factor for whether relocation is acceptable. Generally, younger children will be less likely to relocate unless there is a factor that disqualifies one parent from spending time with the child (i.e. family abuse or violence). The prospects of relocating are more promising when a child is older and has established a secure relationship with both parents.
Relocating overseas is again increasingly difficult as this involves an additional change in culture and language for the children. In this case, it is important to consider the financial circumstances of the parties, and particularly a parent’s ability to fund the child’s travel between countries to spend time with the other parent. Further to this, it is also important to weigh up whether this distance will inhibit a child’s ability to maintain a meaningful relationship with the parent ‘left behind’ in the home country.
It is imperative that these factors are considered before a parent decides to relocate unilaterally with a child. The Court will heavily consider a child’s social network, peer relationships and support from extended family members. It is worth noting that relocation cases are often heavily litigated areas in family law, so it is important that you seek the correct legal advice before making the ‘move’.