Separation is always a difficult time.

It is compounded when one parent unilaterally decides to move away, or expresses a desire to move away, against the remaining parents’ wishes. Neither party has an automatic “right” to move away and potentially compromise the child’s relationship with the other parent.

The Law When Relocating With Child After Separation

In family law, it is always about what is in the best interests of the child and the child’s rights, not that of the parent. There is also no automatic “right” to 50/50 shared care – rather a presumption of equal shared parental responsibility is the starting point and from there, the judges are required to consider whether an equal shared care arrangement is appropriate. Ordinarily, before any application concerning children comes before the Court, the parties have had to attend mediation pursuant to section 60I of the Family Law Act 1975 (“the Act”).

There are a few exceptions to mediation and urgency is one of those. Mediation is an opportunity for each parent to outline what arrangements they propose for the children to spend time with the other parent. Sometimes agreement is reached, sometimes not. Relocation, or moving from the area where a parent has lived, is still not an automatic right even at this time.

Unilateral Relocation

If one parent simply up and moves a distance away with the child, and especially if they decide to move a distance that will make the existing order difficult to observe or established arrangements thwarted, e.g. by moving hundreds of kilometres away or to the other side of Brisbane where there has been an equal shared care arrangement and the move would make the ongoing equal shared care arrangement impossible to observe, the remaining parent can file an application in the Federal Circuit Court of Australia for the child to be returned pending resolution of all parenting matters. There are no guarantees in this jurisdiction and there are many variations of situations. Each case is unique. The comments here are general.

It is helpful if there is already an order in place setting out what time each parent is to spend with the child. If those orders are established and have been observed, and most importantly action is taken quickly to start court proceedings, the prospects of succeeding in the application are increased.

If an order hasn’t been obtained, it is necessary to seek orders for the care of the child as well as the order that the child be returned to the location from where they were removed.

When making the application, the remaining parent will also need to file an affidavit which sets out the background of the matter and provide the court with details as to why, on their case, the court should order the return of the child.

The applicant will need to consider things such as:

• the arrangements which were in place before the removal occurred,
• activities that the child was involved in through school,
• activities that the remaining parent and child did, the schooling for the child,
• extra-curricular activities,
• relationships with half- and other siblings,
• logistics arising from the move,
• notification received regarding the move, and
• the dynamics of the relationship between the parents e.g. domestic violence/civil relationship.

The affidavit material needs to demonstrate the involvement of the remaining parent in the child’s life and how the change of arrangements will affect the significant time that the remaining parent and child have been spending together.

It is very unusual for a court to consider an application like this without the parent who is left being served with the application and affidavit and having an opportunity to respond and thereby state their case or their story.

Request To Move

Where a party decides that they wish to move to a different area, they should first seek the agreement of the remaining parent and try to negotiate an arrangement that supports the child spending significant and substantial time with each parent. If they cannot agree, then an application will need to be made to the Federal Circuit Court to enable the parent to move with the child.

As with the unilateral move, an affidavit needs to be filed. It should detail the story of the party wishing to move and why they are moving. Details such as how the parent will support the child’s relationship with the remaining parent, the school the child will be attending, residential arrangements, connection to the new location, job prospects and family or other support are just some of the considerations that the court looks at. Whilst not a direct factor, a relevant factor in all matters is the payment of child support whilst the involvement of the remaining parent in the child’s life to date is a significant point for the court to look at.

Each party has an opportunity to put forward their case.

What Steps Does The Court Take To Work Out The Cases?

As mentioned above, the court commences its review from a position of equal shared parental responsibility. If there is no reason to question why both parents should not be responsible for the long-term decisions concerning the child, in consultation, then it will move to the next stage and that is to consider whether equal shared time with each parent is appropriate in the given case.

Equal time must be in the child’s best interests and reasonably practicable – how far apart parties live, capacity of the parents to implement the care arrangement, capacity to resolve differences, and such factors as the court considers relevant. Allegations of domestic violence are also relevant.

If it is decided that there should be sole parental responsibility, that does not mean that one parent gets to move away with the child nor stop the consideration of whether significant and substantial time for the child with the parent is appropriate, and how to support that. Even where there is an order for equal shared parental responsibility, it may not be appropriate for equal shared care to occur so the court will consider significant and substantial time for the child with the parents.

The court always works to determine what arrangement is going to be in the best interests of the child. To do this the court takes into account section 60CC of Family Law Act 1975.

The first two considerations are:

• the benefit to the child of having a meaningful relationship with both of the child’s parents, and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

After coming to a conclusion about these aspects, the court must then consider:

• views expressed by the child,
• the nature of the child’s relationship with each parent and other persons important to the child,
• the extent to which each parent has taken, or failed to take, responsibility for participation in decisions about the long-term care of the child, spending time with the child and communicating with the child,
• how the parent has met their responsibility to maintain the child,
• the likely effect of the change on the child including the impact of separation from a parent,
• the practical difficulty of the proposed arrangement including the expense involved,
• capacity of the parent and others involved in the child’s life to provide for the child’s needs, including intellectual and emotional,
• maturity of the child and the parents and any other characteristics that the court considers relevant,
• whether the child has Aboriginal or Torres Strait Islander heritage,
• the attitude demonstrated by each parent to the responsibilities of parenthood,
  family violence,
• if there is a family violence order, the nature of the order, circumstances of its making, evidence for the order, findings made and other relevant matters as determined by the court from the evidence provided,
• arrangements which would least likely lead to the institution of further proceedings, and
• any other fact or circumstances the court considers relevant when considering the case before it.

Sometimes, it is a very finely balanced decision as to whether a parent should stay or be allowed to go, where they have made the application before moving, or ordered to return or remain pending proper resolution of the application. The legislative pathway as set out in the Act must be followed by the court.

Advisers working in this area also need to discuss these aspects with clients so their minds are being turned to the evidence required to prepare and present their case.

Relocating With Your Child Summary

No parent has an automatic right to change the arrangements for the care of a child. Each parent has shared parental responsibility, even if no order exists to confirm this. The removal of a child to another location falls within parental responsibility. Because of the nature of parental responsibility, notification and discussion needs to take place. If agreement is not reached, the child should not be removed. It is imperative that the child’s interests are placed ahead of those of the parents.

The courts take very seriously the role of making a decision about the care arrangements for a child. It is involved because their parents cannot come to an agreement. Sometimes, the court may appoint a family consultant or report writer to help ascertain information about the parties, to observe interactions and make recommendations for the support of the child’s relationship with a parent and whether the move is in the child’s best interests. The court is guided by these recommendations.

Sometimes, obtaining such a report before starting court proceedings can be of substantial benefit to guide discussions and negotiations about the best way to support a proposed move, or occasionally a change of primary care provider. Nothing is certain in this sphere and it is always case by case and it has to be as each case has a different set of facts from the one before or after it.

The one consistent factor through all children’s matters, though, is that the child’s best interests are the paramount consideration.

How We Can Help

Our expert Family Law Team can assess your individual situation in accordance with the Family Law Act, provide expert guidance in negotiations with your former partner surrounding the equal shared care arrangements, offer practical and experienced advice if appearing before the court is unavoidable, and provide you with the best possible representation if court-ordered agreements are required. With over 50 years’ experience, our Family Law Team are experts in the family law field. The team also boasts an Accredited Family Law Specialist.

Contact Us

Get the best representation. Contact our family Lawyers on 1800 957 936, email mail@rmold.newwebsite.live, or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

This article was originally published on the 9^th of October 2017. It was last updated on the 23^th of November 2022