Relocation and Divorce

Family Law is full of difficult issues but none more difficult than the issue of relocating children after divorce.  So much so that the Chief Justice of the Family Court of Australia has said of the relocation of children when disputed before the Court:  “Relocation cases are not a problem that can be solved, but rather a dilemma for which there is no solution.” Having said that, where parents cannot agree they must look to the Court for a solution.

What are the factors to be considered when evaluating whether or not a parent should be able to relocate with a child?

  • The best interests of the child is the paramount consideration in the Court considering whether or not any particular parenting order ought be made (Section 60CA of the Family Law Act 1975 (“the Act”)).
  • Consider whether the child spending equal time with each of the parents would be in the best interests of the child (Section 65DAA(1)(a) of the Act).
  • Consider whether the child spending equal time with each of the parents is reasonably practicable (Section 65DAA(1)(b) of the Act, also see the case of MR v GRR).
  • If an order has not been made for a child to spend equal time with each of its parents consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child (Section 65DAA(2)(c) of the Act).
  • Consider whether the child spending substantial and significant time with each of the parents is practicable (Section 65DAA(2)(d) of the Act).
  • The court must consider the benefit of the child having a meaningful relationship with both of the child’s parents (Section 60CC(2)(a) of the Act).
  • Consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect, or family violence (Section 60CC(2)(b) of the Act).
  • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views (Section 60CC(3)(a) of the Act).
  • The nature of the relationship of the child with each of its parents and any other persons, including any grandparent or relative of the child (Section 60CC(3)(b) of the Act).
  • The willingness and ability of each of the child’s parents to facilitate, and encourage, a close continuing relationship between the child and the other parent (60CC(3)(c) of the Act).
  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, siblings, or any other person with whom he or she has been living (Section 60CC(3)(d) of the Act).
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis (Section 60CC(3)(e) of the Act).
  • The capacity of each of the child’s parents and any other person, including a grandparent or other relative, to provide for the needs of the child including emotional and intellectual needs (Section 60CC(3)(f) of the Act.
  • The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant (Section 60CC(3)(g) of the Act.
  • The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (Section 60CC(3)(i) of the Act).
  • Any family violence involving a child or a member of the child’s family (Section 60CC(3)(j) of the Act).
  • Any family violence order that applies to the child or a member of the child’s family (Section 60CC(3)(k) of the Act).
  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child (Section 60CC(3)(l) of the Act).
  • The extent to which the child’s parents have fulfilled, or failed to fulfil, each of their responsibilities as a parent to the child (section 60CC(4) of the Act).
  • Any particular issues pertaining to the culture of the child particularly if the child is Aboriginal or a Torres Strait Islander (Sections 60CC(3)(h) and Section 60CC(6) of the Act).
  • Any other factors the Court considers relevant (Section 60CC(3)(m) of the Act).

As you can see the factors to be considered by the Court are considerable and therefore careful attention needs to be paid to the evidence to be gathered and how it is presented.  Relocation decisions from the Court often make comment about there being no evidence presented by a party on certain matters.  It is not simply enough for a client to tell his or her story.

A further key factor in relation to the presentation of evidence concerning relocation cases is the amount of detail or forethought that had been given to the plans for relocation, the arrangements for the children and in particular the arrangements for continuing the relationship with the other parent.  As a matter of law, an applicant to relocate is not required to give compelling reasons for the relocation, however, it would be illogical for the Court to take seriously an applicant to relocate that has not thought through these issues and the considerations mentioned above.  In particular, a parent wishing to relocate should have a clear idea in relation to arrangements for schooling, accommodation, extracurricular activities, the inter-relationship between these things and the type and hours of employment available to the parent, the level of support available from family, friends and services and the practicality of communicating and spending time with the other parent.

In preparing relocation cases for Court there are often competing concepts to be considered.  For instance, a parent seeking to relocate may say that the child has little or no relationship with the other parent however, conversely it can be argued that the child, if allowed to relocate, will be deprived of the opportunity of ever developing a significant relationship with the other parent.  It can be argued equally that children who have a strong relationship with the remaining parent will be able to maintain that relationship if allowed to relocate, while the remaining parent with a stronger relationship will say that the strength of that relationship say the strength of that relationship is a reason for the relocation not to occur as in their view inevitably the relationship will be compromised or damaged by the relocation.

Undoubtedly one of the key considerations in any relocation application is the likelihood of the parent relocating, complying with the orders for facilitating communication with and spending time with the remaining parent.  If there is a history of being obstructive in relation to the child spending time with or communicating with the remaining parent the prospect of being allowed to relocate are usually diminished.  Again, there can be competing arguments that hostile relationships between parents should be a reason for allowing relocation, especially where there has been family violence.  On the other hand hostile relationships tend to have a far higher incidence of non compliance with orders for spending time and communicating with the other parent.

In any relocation application the traditional considerations of the Court in relocation cases had been that the Court would consider whether or not the parent wanting to relocate with a child should or should not be allowed to go.  In the case of U v U the High Court made it clear that it should also be considered whether or not the parent wishing to remain should be required to consider the reasonableness of also relocating.  While it is clear the Court cannot order a parent wishing to remain, to move and follow the child, it is now a factor that the Court should also consider as to its practicability.

This article is written by Peter Magee (Partner) from Armstrong Legal

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