Being such a multi cultural island nation as ours, it is no wonder our Courts are regularly being asked to decide on whether it is in a child’s best interest to relocate to another Country or interstate.
For the Court, relocation cases are the most difficult. In part, because there is no specific legislative framework for how the Courts are to deal specifically with relocation cases and in part because, often, the relocation is not because of any wrong doing or risk factors being alive as between the parties and so the cases are often finely balanced.
The legislative pathway and factors considered in dealing with relocation is exactly the same as any other parenting matter the court is asked to decide. We can however look at some specific case law to determine how the Court might approach matters.
In the decision of A v A: Relocation Approach (2000 FLC 93-035). The court provided certain guidelines to be considered:
- Whilst not the sole consideration, the paramount consideration will be the children’s best interests;
- The relocating party does not have to have compelling reason to want to relocate;
- The court must evaluate the competing proposals of the parties;
- The evaluation of the parties respective competing proposal must consider the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
- It is necessary to consider the relevant sections of the Family Law Act, that relate to the best interests of the child.
It should be noted that following amendments to the Family Law Act in 2006, there have been a number of further considerations provided by the Court:
- The Court is not limited to deciding just between the two proposals put forward by the parties;
- The non relocating parents capacity to relocate;
- Nature of accommodation for the child, opportunities for employment for both parties;
- Right to freedom of movement for the parents;
- The health of each of the parties.
I want to relocate, what do I need to think about?
My strongest advice is to seek legal advice early. It may not be that you need to have a lawyer involved from that point, but it is important to know what evidence the Court will consider in making it’s decision, from an early stage.
Your lawyer may help you device a ‘plan of action’ that may include you obtaining certain reports be or certain information that you may ultimately need. That plan may be something you can then work on over a period of time before coming back to your lawyer or it may be something you and your lawyer need to work on together, from the get go.
Allow an extended period of time to deal with the matter. You may need to attend Family Dispute Resolution or file Court proceedings. The Court system is slow and it may take a considerable period of time for the matter to ultimately be heard by a Judge.
You should be aware that in the event that there are proceedings in foot under the Family Law Act or there are Parenting Orders in place, a person commits a criminal offence by removing a child from the jurisdiction without the consent of the other parent or order of the Court. You should also be aware that Australia is party to the Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). If a party removes a child from the jurisdiction to a Country that is party to the same convention, you will likely be ordered to return to Australia for the matter to be dealt with.
My former partner wants to relocate overseas with the children what do I need to think about?
Again, it is important that you immediately seek legal advice. There may be certain risk management measures that need to be put into place to avoid the children from being removed from the jurisdiction such as a Notification to the Passport Office, Airport Watch list Notification and/or injunction preventing your former partner from moving.
It will be necessary for you and your lawyer to devise a strategy to work towards to limit the opportunity of relocation or to work out an arrangement that works best for the entire family.
Would like further information or advice? Email me at orlena.moloney@bgm.legal
