The Key Issues of Child Relocation After Separation

In family law, the term child relocation refers to a change of residence that will also involve a significant shift in the living arrangements of a child, living with one parent, making it difficult for the other parent to spend time with the child. This can involve relocating interstate or overseas.

If this leads to a dispute that reaches the Court, the best interests of the child will be paramount in coming to a decision, though it is not the only consideration. If a child has been relocated without the consent of one of their parents, they may apply for a Recovery Order, under which the other parent and child can be ordered to return.

Parental responsibility

The Family Law Act 1975 (Cth) is the principal statute governing the rights and responsibilities of parents and the concepts of custody and access to children.

Children have a right to know and be cared for by both parents. This is regardless of, for example, whether the parents are separated or have never lived together. Both parents have "parental responsibility" which continues after separation. In essence, this term means the power to make crucial decisions concerning a child, such as where they will live, their education, health, and religious matters.

Although the allocation of parental responsibility continues after a child's parents have separated, even if they have re-married, this can be altered by a Court Order. In making a parenting order, the child's best interests are the paramount consideration.

When do child relocation disputes arise?

Disputes usually arise if it is proposed that a child is to move with one parent away from the other, reducing the non-relocating parent's opportunities to spend time with the child. It is one of the significant long-term issues on which parents with shared responsibility are expected to consult.

Cases concerning the relocation of children can be complex, involving a significant impact on both the children and the responsibilities of the parents.

The factors a Court will consider

Among the factors that the Court will consider when determining an application for relocation, include:

• The reasons or interests the parent proposing the relocation may have for wanting to move. It is not necessary to provide compelling reasons;
• The nature of the relationship between the child and each parent, as well as other significant people in the child's life (e.g. grandparents), and the impact the relocation would have on those relationships;
• The practical implications involved, and any plans there are, for the non-relocating parent to spend time with, or communicate with, the child. A proposal to move interstate may be viewed more favourably than one overseas. Issues of accessible transport links between locations may be relevant; and
• The wishes of the children impacted - who they will be living with and the degree of dislocation there may be from their other parent.

In parenting matters, the child's wishes and feelings are relevant. These are usually obtained by an assessment, as part of the Court's determination of the child's best interests. The weight attached to these wishes will depend on the child's age and level of maturity. However, the Court will not necessarily follow these views.

In Bondelmonte v Bondelmonte [2017], the High Court of Australia considered the issues regarding a child's view on their relocation. Read more in our blog "Bondelmonte v Bondelmonte: The case of the two brothers".

While a child's wishes can be taken into account, they are not ultimately a deciding factor for the Court, meaning that even mature children have a voice, but they do not necessarily have a choice. 

What if a child has already been relocated?

If a parent unilaterally relocates a child or fails to return a child, you may be able to obtain a Recovery Order. Again, in deciding whether to grant an Order, the Court will always consider the best interests of the child. 

When a child is abducted from a country where they were "habitually resident" by a parent without permission, recovery may require international cooperation. Many countries (including Australia, the UK, the US and several Asian countries) are signatories to the Hague Convention. Under this treaty, these countries agree to assist each other in recovering and repatriating children back to the country where they had been resident at the time of abduction.

What must a parent wanting to relocate their child prove?

The legal position of a parent seeking to relocate with a child internationally is similar to moving within Australia.

'Best interests of the child'

In relocation matters, the guiding principle is the "best interests of the child". The relocating parent need not present a compelling case but instead must show how it would be in the best interests of the child along with plans as to how the non-relocating parent might still have a relationship with the child. 

The Court will consider the existing relationship of the child with the non-relocating parent.  This could include circumstances such as family violence that could make for an unsafe situation for the child and parent.

Views of the child

The views of the child will be considered depending on their age and maturity, but the Court will not necessarily endorse these preferences. 

All options should be explored, including both parents relocating, to maintain a relationship with the child.

Each case is different, and a determination will be based on the specific facts and circumstances of the case. Ultimately, the Court must balance the child's interest with those of both parents in a way that promotes the welfare of the child while recognising the interests of the parents.

Contact our Relocation Parenting Disputes Lawyers in Sydney, NSW

At Szabo & Associates Solicitors, we are experts in child relocation and recovery matters. We have helped many clients relocate to another state or country and have also represented parents who have challenged the relocation of their children. Please contact us on 02 9281 5088 or complete the online contact form.