Relocation

Deciding whether to relocate can be one of the most difficult decisions that can be made in a lifetime.

Factors such as expense, networks/ contacts, spousal requirements, work commitments and lifestyle factors are considerations and in some instances, demands, that dictate a relocation. If however, there are existing Orders and also in circumstances where the time with children are shared between parents, it is then necessary to make an application to the Family Court to seek a relocation Order. On the one hand, each party should be entitled to live how and where he or she wishes and to proceed with their life as they see fit. On the other hand, however, it is the right of the child to maintain a meaningful relationship with both of his or her parents.

The principle and most overriding consideration is what is known as the Paramountcy Principle namely, what Order is in the best interest of the child.

In determining what is in the best interests of the child, the Court will have regard to the following considerations:

1.      That it is important for children to have a meaningful relationship with both parents; and

2.     That it is necessary to protect children from physical or psychological harm as a result of exposure to abuse, neglect or violence.

In determining what is in the best interests of the child, the Court has regard to sections 60CC of the Family Law Act 1975 (as amended) (“the Act”). Section 60 CC of the act sets out the factors to consider including, the views of the child, the relationship of the child with the parents, prior actions as to time or long term issues, what have the parents done to maintain the child, practical difficulties, capacity of each parent to provide for the needs of the child, the attitude of each parent to the child, and responsibility to parenthood, maturity of the child, family violence, and any other matter that the Court thinks relevant.

In practical terms, what is the best outcome for the child concerned being now and in the future. Factors such as lifestyle, earning capacity of the parents by a spouse or significant other, work prospects, health issues and other circumstances which would provide a better outcome for a child are all factors which must be brought before the Court in any relocation application.

The hurdle that is faced is the presumption that is contained within the Act of equal shared parental responsibility. Clearly a relocation Order is directly in conflict with equal shared parental responsibility. How could any parent engage in parental responsibility if after relocation the level of contact is sparse, probably two or three times a year and involvement in the child’s life is minimal. Of course, it is arguable to suggest that the allocation of time, which a child spends with one of the parents, is not relevant to parental responsibility and on its face, that is correct, however, in practical terms it is difficult to understand how a parent could exercise parental responsibility with such limited time with the child.

The applicant may put before the Court evidence which satisfies the Court that it would not be in the child’s best interests for the parties to have equal shared parental responsibility. This evidence would ordinarily relate to significant acts of violence, sexual abuse, exposure to violence or an inability of that parent to protect the child or children from physical or psychological harm.

Simple criticisms by one parent to another are not substantive, as almost every party who goes before the Family Court will have a myriad number of criticisms of the other.

Also having regard to section 65DAA of the Act, the Court, once a presumption of equal shared responsibility applies, must then consider whether the child should spend equal periods of time with each parent provided it is in the child’s best interests and practicable. The Court, in AMS – v – AIF (1999) FLC 92-852, the Court set out nine (9) general propositions which are as follows:

  1. Each case is unique.
  2. No single factor will be determinative of a relocation case and each case requires individual discretion.
  3. The Court cannot ignore the expectation of a parent that he or she should be free to live how and where he or she chooses in the future and there is no universal rule that separated parents should live in close proximity to each other.
  4. Democratic societies place a high degree of entitlement of adults to live where they choose and interference to that right is a significant concern.
  5. What is in the best interest of the child and not the wishes and interests of the parents.
  6. Each spouse shall be entitled to begin a new life and the rule as to the child maintaining a relationship with the parents is not an absolute one.
  7. The Courts have adopted a more relaxed attitude to relocations within Australia as opposed to oversees.
  8. The Court will assess the adequacy of new time arrangements and as long as they are in the best interests of the child.
  9. The Court has discretion to depart from the shared parental responsibility in certain cases.

It has been held by the Court that a relocation proposal should be given consideration with the advantages and disadvantages of the proposal being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement (see Taylor and Barker (2007) FAMCA 1246 and Goode and Goode (2006) FLC 92286

The Court has also held in U-v-U that a parent who opts for relocation in preference to maintaining a close bond with her or his child runs the risk that he or she will be seen as selfishly preferring his or her own interests to those of the child (U-v-U (2002) HCA 36).

It has however, also been held that the legislation aspires to promote a meaningful relationship and not necessarily an optimal relationship see Godfrey – v – Saunders (2008) FLR 287. The Court in the matter of TLLAM –v- Calhoon (2013) FCCA 1118. Balanced the pros and cons of the relocation from the prospective of the child or children concerned. The Court had the benefit of an expert report which would be critical in all relocation cases. The Court had regard to the emotional impact to the wife and the requirement that time could still be meaningful with the father if the relocation remained. The Court also considered the dangers arising from compelling the mother to remain living in her prior place of residence. These included her prior mental history, the history of the father, the actions of the father, the financial circumstances and the contacts that the mother was able to rely on in the prior residence compared to the relocated residence. The Court in that matter considered the impact on the mother was to be given more regard by the Court than the impact on the father. Significantly, this related to the mental health issue of the mother and the history of the mother being the main carer for the child.

Further, of significant importance were the arrangements that were proposed by the relocating parent to enable the non-relocating parent to maintain a relationship with the child.

It is critical to put forward significant and the best practical options that could be available for the non-relocating parent to ensure that there would be a continuing meaningful relationship between the non-relocating parent and the child.

Finally, prior to any application, it is critical to ensure that the relocating parent is the primary carer, which should be unchallenged and upon consideration of the section 60CC of the Act factors it should be uncontested that the child would continue to live primarily with the relocating parent.

The Court will then have significant regard to the impact that dismissing the relocation application would impact to the health, financial status and wellbeing of the primary carer.

In conclusion, whilst it is difficult to overcome the fundamental provision that each parent should be entitled to spend substantial and significant time with the child to ensure each child has a meaningful relationship with each parent. This presumption can be overcome by careful evidence having regard, to the majority carer and his or her health having regard to if the Order is made (a) his/her financial resources (b)his/her financial circumstances, (c) the contact and network arrangements that are in place or that could be in place (d) her health or the health of the child and (e) the circumstances that would lead a Court to consider it would be in the best interests of the child (and indirectly in the best interests of the primary carer) for an Order to be made.

Please note this article is not to be taken to be and is not legal advice, specific legal advice should be obtained should you wish to rely on this article and we are O’Hare Law are happy to assist you in this regard.

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