Adults in Australia generally have freedom of movement to relocate to different states and territories as they choose. For a parent who shares care of a child, however, this freedom is contingent on whether relocating negatively impacts on the ability of the other parent to spend time with the child.
If you are considering relocating with your child there are several rules under the Family Law Act 1975 (Cth) that you must consider.
First, unless there has been a court order to the contrary, each parent has equal and shared parenting responsibility: this means that both parents must agree about important decisions for the child.
Second, the focus of both parents must remain on what is in the best interests of the child.
Third, there is a presumption that it is in the best interests of the child to have a meaningful relationship with both parents, and a further presumption that it is best for a child to spend equal time with each parent (or, if this is not practicable, at least significant time with each parent).
Due to these three rules, you should not relocate with your child if this would prevent your child from spending at least significant time with the other parent, unless there are compelling reasons for the relocation. This article examines child relocation cases in Australia, and provides guidance on when it is considered to be in the best interests of the child to relocate with one parent.
What is a child relocation case?
In order to facilitate shared care of children, parents will often establish their residences in proximity to each other and other important locations such as schools and grandparents. Child relocation occurs when one parent changes the existing living arrangements of the child, and thereby potentially impedes the child’s continuing relationship with the other parent.
When one parent wishes to relocate, the parties should discuss the proposal and attempt to reach an outcome that is best for the child. If the parents cannot agree on an outcome, then the Federal Circuit and Family Court of Australia has the power to resolve such disputes and make a relocation order to either prevent or permit relocation.
Under what circumstances is a mother able to relocate her child?
After the dissolution of a relationship, a child’s living arrangements are usually set out in a parenting plan or consent order. These documents usually specify that changes to the child’s living arrangements must be agreed between the parents.
In the absence of a parenting plan or consent orders, either parent can chose to move house without the permission of the other parent, unless the proposed relocation would make it difficult for the other parent to maintain the same level of contact with the child. For instance, a move within the same suburb or to a neighbouring suburb would be unlikely to impede the relationship between the child and the other parent.
Rosa’s Case
The High Court case of MRR V GR [2010] (“Rosa’s case”) is perhaps the most referenced child relocation case in Australia.
In this case a family were living in Mt Isa when the mother decided to move back to Sydney with her child. This move would significantly impact on the child spending time with her father, who planned to continue to live in Mt Isa. The mother’s initial application was denied, as the Court found that it was in the best interests of the child for her to stay in Mt Isa with her parents sharing parental responsibility.
The mother appealed the decision, and the High Court looked further into the family’s circumstances. In Mt Isa, the mother was living in a caravan park with narrow employment opportunities, a situation that was adversely affecting her mental health. If the mother was able to relocate to Sydney, she had access to family support and better job prospects, which would lead to an overall improvement in the circumstances of the child. The mother in this case won the right to relocate her child. This result was achieved not because it was in the mother’s best interests to move, but because improving the situation for the mother would, by extension, be in the best interests of the child.
How does the family court decide whether a child is allowed to move?
As noted above, the child’s best interests are the paramount consideration to the Court when deciding whether a parent can relocate a child. In A v A: Relocation Approach (2000), the Full Court established that a parent does not need to have a compelling reason to relocate, but a case is often won or lost on the reasons behind the move and how clearly they are conveyed to the Court.
In these cases the Court will consider a change to the child’s residence based on a number of factors. The factors in Rosa’s Case are still the most relevant for consideration of whether a relocation will be allowed. These factors include whether the move is to a location where the parent will have increased family support, and the resulting impact on the mental health of the proposed relocating parent. In addition, there must be consideration of the rights of the parent and child to live in an environment supportive of their religious and cultural identity.
The Court will also consider whether the parent has experienced difficulty supporting themselves financially in the current location, and whether there are improved job prospects in the proposed location.
Another factor is the existing dynamic within the family. If the child currently spends limited time with the parent who is staying in the current location, then this would be a relevant factor in the Court’s determination of whether a move is in the best interests of the child.
Additional considerations include whether one of the child’s parents has a history of family violence or neglect, in which case it may be in the child’s interests to relocate with the primary carer and see the other parent less frequently.
Steps to win a child relocation case
Although, as discussed above, the focus of the court is on the best interests of the child, recent case law shows an increased emphasis on the importance of the parent’s happiness. In Blanding & Blanding [2016], the Family Court allowed a mother to relocate because there was a clear financial advantage to the move and, more crucially, denying the application would cause ongoing unhappiness and frustration to the mother.
The actions and attitude of the mother were instrumental in her obtaining the relocation order. She had a history of facilitating the father’s ongoing contact with the children after the separation despite their acrimonious relationship and the father’s own mental health problems. She had allowed the father to attend activities outside the scope of the consent orders and did not bring the application for relocation until the father applied for equal time child custody. She had formed a new relationship, which was one of the reasons for the relocation, but she was planning to set up her own residence following relocation to give her children time to adjust.
On the other hand, the father did not show the same reasonableness. He initially sought equal time orders, and in response to the mother’s relocation application insisted that she should move and leave the children with him full time. This was an unrealistic scenario and shows limited awareness of the children’s best interests, or willingness to accommodate the legitimate interests and desires of the mother. In this case the mother was able to relocate because it was, on balance, more in the interests of the children to accompany the mother in a relocation that would increase her personal happiness than it was for them to remain in close proximity to the father.
However, the reasonableness of the mother is not always a disqualifying factor. In Timms & Payton [2015] a mother told the Court during a final hearing on consent orders that she had bought a property several hours away from the father, and wanted to revise the changeover arrangements. The mother also made it clear that whatever the Court ordered, she was moving regardless of whether the child accompanied her. The Court pointed out that this was a real concern as it prioritised her needs over that of her child, but they nonetheless allowed her to relocate with the child. The attitude of the mother in this case was at odds with the mother in Jurchenko & Foster [2014], who stated that she would not return to India without her child, even if that meant not being with her new partner.
How to apply for a relocation of children court order
The first step in a child relocation case is to attend a pre-action proceeding such as family dispute resolution counselling or mediation, in the hope of reaching an agreement privately. If a private agreement cannot be reached then either parent can apply to the Federal Circuit and Family Court of Australia for parenting orders to relocate the child, or conversely, to stop the other parent from relocating the child. The steps involved in making a relocation application depend on whether this is a new proceeding or pursuant to an existing parenting or property proceeding. The application processes are outlined further here.
Interstate relocation of child
Some parenting plans and consent orders will specifically prohibit interstate relocation, but from a legal perspective there is no specific prohibition on moving a child between Australian states or territories. In some cases an “interstate” move may not be particularly significant, such as the movement from one border town to another (such as Coolangatta to Tweeds Head) while an intrastate move could involve a significant distance (such as from the Gold Coast to Cairns). It is for this reason that most consent orders and parenting plans prohibit relocations of a child of more than a specific number of kilometres from an agreed point, such as the child’s current school.
International relocation of child
By law a parent cannot take an Australian child overseas, even for a temporary holiday, without the permission of the other parent. A passport will usually only be issued to a child with the written consent of all of those with parental responsibility for the child. If you are concerned that your child will be removed from the country without your consent, you can lodge a Child Alert Request with the Australian Passport Office and be notified if an application is made for your child. If your child already has a passport, you can apply to the Court for the child’s passport, or the other parent’s passport, to be surrendered to the Court. Alternatively, you can apply for a child alert order or an order that altogether prevents the child from leaving the country. If the child’s name is placed on the Airport Watch List then they cannot be taken out of Australia until the Court makes a further order.
A parent relocating overseas can be a wonderful opportunity for a child to experience the world and other cultures, but the Court will be very hesitant to make a relocation order for an permanent international move in the face of opposition from the other parent. The parent remaining in Australia would have significant financial and practical difficulty maintaining regular contact with the child, and the argument of the relocating parent would need to be particularly persuasive to convince the Court to grant such an order.
If you move overseas without the permission of the other parent you may have a recovery order issued against you, and/or a Hague Convention application.
Frequently Asked Questions About Child Relocation Cases
How to stop my child from relocating
The best way to prevent your child being relocated is to have an agreement in place with the other parent. Even if you are on amicable terms with your former partner, and have privately agreed parenting arrangements, you should have a written document with a clause that prevents either parent from relocating the child without the express permission of the other parent.
Of course, even if there is a written agreement, either parent can apply to the Court for a relocation order to override the terms of the existing parenting agreement. If this occurs, the non-relocating parent can present the Court with an argument against the relocation.
Can I move with my child without the father’s permission?
You can move without the permission of your child’s other parent as long as it is only a short distance away.
You must consult with the child’s other parent before a move of any significant distance. If you are wondering whether your relocation is significant or not, you should ask yourself whether it will inhibit the ability of the other parent to see the child according to the current care arrangements.
Can a father stop a mother from relocating their child?
As noted above, the best way for either parent to prevent the other parent relocating a child is to ensure that they have legally enforceable consent orders in place. Consent orders will typically contain a prohibition against relocation without the other parent’s consent or the Court’s permission. If there is a such a consent order in place, if one parent wishes to relocate and the other parent does not consent, they will need to establish to the satisfaction of the Court that the relocation is in the best interests of the child.
It is not a criminal or civil offence to relocate your own child within Australia, but it can be a contravention of a court order.
What do I do if my child has already relocated?
Sometimes a parent moves a child without any warning. In that case, if you have parental responsibility for the child you can apply for a recovery order from the Federal Circuit and Family Court of Australia. Once a recovery order is issued, the police can locate the child and return him or her to the other parent. Again, the primary consideration for the Court will be the best interests of the child.
How long does the Court take to give permission to relocate?
Given the urgency of some relocation cases, the Court will typically respond to an application with an Interim Order. This can happen very quickly, within days in very urgent circumstances, but final orders may not be issued for months, if not years, depending on the particular circumstances. The Court may want the parents to trial the proposed relocation arrangements before making a final order allowing or preventing the relocation.
Are you looking to relocate with your children?
Unified Lawyers can help if you are involved in a child relocation case and need legal advice or representation in a court proceeding. Our family lawyers have extensive experience with all family law matters, including parenting cases that involve applying for relocation orders and recovery orders.
We can also assist you with drafting binding consent orders that ensure that everyone is on the same page when it comes to the living arrangements of your children.
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