Co-parenting children after separation can certainly be difficult, and it becomes especially so if you or your co-parent wants to move to a new location that would impact on your parenting arrangements. When it comes to so-called family law relocation cases, if you can’t agree on a solution and ultimately need a court to decide an outcome, it’s important to understand how a court would deal with the matter. Here, we take a look at some key things to consider if you are making an application for relocation for your child.
As with all parenting matters, in relocation cases, the courts have the paramount duty of making orders that will be in the child’s best interests. Under the Family Law Act 1975, there are primary considerations and additional considerations that must be taken into account.
As well as the standard criteria for determining the best interests of the child, there are those more specific to relocation cases, such as the practical difficulties and expenses of travel to maintain time with a left-behind parent, and the likely effects on the child of a move. The views expressed by the child about the proposed relocation are also taken into account (depending on things like the level of maturity and understanding).
With relocation cases, the courts have to also deal with the conflict that arises by the need to balance children’s right to maintain a meaningful relationship with each parent, and the inherent freedom of movement that parents should enjoy. Judges will often reference this tension and the fact that although children’s best interests are paramount, they are not the exclusive determinant of parenting orders under the Act. In fact, it’s only when a child’s welfare is going to be negatively impacted by a parent’s right to freedom of mobility that the courts will make orders that impinge on that freedom of mobility.
What can be learnt from a recent relocation matter?
In a recent case in the FCFCOA (pseudonymised as Yu & Casali), the mother of a six-year-old boy was permitted to relocate him to Queensland from Victoria. The family had lived in Victoria for all of the child’s life, and after separation the boy had lived primarily with his mother, spending substantial time with his father. The mother now wished to move to Queensland and sought a court order allowing the child to move with there with her. The father opposed the child’s move. Let’s take a look at what key takeaways can be had regarding running your relocation case from this matter.
Who has been the child’s primary carer?
It’s important to note that it matters who has been the child’s predominant care figure in relocation cases. Even if the dynamic between a child and a left-behind parent will change if a child is relocated away from them, the impact on the child is often regarded as potentially more severe if they are separated from their former primary carer.
In the Yu & Casali case, the judge relied on expert evidence that there would be a far greater negative effect on the boy if he was “disconnected from his mother” than “if time with his father were to become constrained”. This would result in “enormous emotional impact on this child, which may manifest in psychological difficulties, despair, behavioural challenges, and impairment in social and academic functioning”.
Key takeaway: Pre-existing parenting arrangements may well have a significant effect on the outcome.
How the relationship with the left-behind parent will be maintained
In making your case for relocation, you need to carefully craft realistic proposals for how the child will spend time with the left-behind parent. It’s vital to show that you have thought through all the options to ensure that your child can retain their meaningful relationship with your co-parent.
Note that this includes demonstrating that the left-behind parent could, themselves, also move to your new proposed location. It shouldn’t be assumed that the left-behind parent cannot move. In fact, as the judge in Yu & Casali noted, this is actually a “legally impermissible assumption”.
Key takeaway: Give serious consideration to the potential effect on a left-behind parent, and prepare proposals for how the child’s relationship with a left-behind parent will be maintained. Consider, too, how you might show that the other parent could also move to the child’s proposed new location, for instance through researching potential employment opportunities for your co-parent. Conversely, if you are the non-relocating parent, you should demonstrate exactly why you could not also move to be nearer the relocated child.
Practicalities and expenses of travel
The courts will examine the practicalities of competing proposals for where a child should live. Demonstrating thoughtful preparation is key. Applications to relocate routinely fail because a parent who intends to relocate has not demonstrated sufficient planning in relation to a proposed move.
When there are long distances involved, there can be substantial travel costs (whether for a parent visiting a child or vice versa). So there will be an assessment of whether travel is practical and within the parents’ means, even if it may be inherently difficult. To do this, the courts need evidence of the costs of proposed travel arrangements as well as evidence of parents’ financial means.
In the Yu & Casali case, the father didn’t undertake any searches regarding the cost of travel to spend time with the boy to support his position that it would be “financially difficult”, and the judge found that while it was likely to be difficult, it was still possible and practical.
Key takeaway: It’s vital to undertake research and present evidence (such as flight costs and details of your financial circumstances) regarding the practicalities of any proposed travel arrangements for the left-behind parent and the child.
Reasons why you want to move
Under the law, you don’t need to show you have a compelling reason why you want to move. Having said that, it clearly still helps to show “good reasons”, because it can demonstrate that the move is not simply an impulsive, ill-prepared whim.
In Yu & Casali, the mother wanted to move to pursue employment opportunities and because she had a new partner who lived in Queensland. She also demonstrated “a genuine desire to live there”. She argued the move would “provide her with additional personal, physical, emotional and financial support”.
In the matter, the judge spoke of how “the happiness of [the child’s] mother is a matter that can properly be afforded substantial weight”. (Read also our related blog.)
Key takeaway: If employment is a reason for your move, it is a good idea to show that you have tried and failed to find similar opportunities in the place you wish to leave behind. If mental health reasons exist (such as struggling with isolation and loneliness in your present location, lacking extended family support, etc), then you should show how the move would benefit you — and crucially, the flow-on benefit to your child.
Effect of the move on the child
When considering the effect of a move on the child, the courts will take into account expert evidence of the impact on the left-behind parent’s relationship. For instance, in the Yu & Casali matter, the judge acknowledged the father’s argument that the proposed move would have a profound impact on his relationship with the boy. However, the judge also noted that case law has established that a “meaningful relationship” does not have to equate to one that is “optimal” or “ideal”.
Key takeaway: Arguing there will be a change in a left-behind parent’s relationship with the child to a less than optimal one is not sufficient, because it is inevitable relationships will change from an “ideal” situation of two co-parents living near each other. But it may be a different story if it’s shown that a move will result in the complete termination of a parent’s relationship with the child, due for example to extreme distances with contact limited by financial or other practical difficulties, or due to a relocating parent’s inability/unwillingness to foster the left-behind parent’s relationship with the child.
Can the court force a parent to live somewhere?
It’s possible to make an application to the court that compels or coerces a parent to live in a place that isn’t of their choosing. However, judges dislike having to use their discretionary powers to force parents to live somewhere, as this conflicts with parents’ freedom of mobility. Relocation cases are therefore usually framed in terms of making an order that decides where the child should live, not the parents. Nonetheless, coercive orders compelling a parent to remain somewhere or move somewhere theoretically can be made. Similarly, parents can be restrained by injunction from living too far apart for a child to be able to maintain a meaningful relationship with each of them.
Key takeaway: Coercive orders are rarely made. They are typically only made in cases where there is some kind of “extreme” or “exceptional” factor involved; and if an alternate practical option is unavailable.
It’s a very good idea to obtain legal advice whether it is you who wishes to move, or your co-parent. Please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law a call on (02) 6223 2400.
Please note our blogs are not legal advice. For information about how to receive the correct legal advice, please contact Alliance Family Law.
