Sometimes, separated parents may wish to relocate to a new location with the children that may be a long distance away from their co-parent. There are countless reasons why people wish to move: whether it’s a desire to return to a former hometown and have the support of extended family there, or the wish to take up a better job, or to move to the location of a new partner. If a co-parent doesn’t agree to the children moving, it’s possible to apply through the courts for orders permitting it. However, convincing the courts to allow a family law relocation can be a tough task. Let’s take a look at how courts determine whether or not children should be allowed to relocate with a parent.
In parenting matters in family law, the children’s best interests are paramount. But the courts have to balance this paramount principle with parents’ freedom of movement. Simply sharing parental responsibility doesn’t mean parents automatically forfeit their right to live and work wherever they desire. However, if a parent’s movement results in a child’s best interests being negatively impacted, then the courts have the power to intervene.
So how do the courts handle these difficult cases? The core questions that the courts are concerned with in a family law relocation matter are: How will a proposed relocation affect a child—positively or negatively. And what is the likely impact of the relocation on the quality of the child’s relationship with the left-behind parent? These go to the twin “primary considerations” in the Family Law Act 1975: the need to protect the child from harm, and the right of the child to have a meaningful relationship with each parent.
A recent case in the family courts is illustrative of how a family law relocation is handled by the courts. In the matter Daniels & Townsend, a mother wished to relocate with her seven year old daughter from Melbourne to Canberra. The court found this would not be in the child’s best interests and the mother was restrained by injunction from relocating.
The father was able to convince the court that the move would be a negative for his daughter: she would likely lose her meaningful relationship with him as well as being deprived of all her other familiar supports and extended family and essentially be thrust into the unknown.
What are some of the things to note about family law relocations, with this case as a good example?
The effect on the child of maintaining the status quo
Not only will the courts examine the impact of a relocation on the child, but they will also look at the impact of not allowing the child to be relocated. For instance, preventing the parent from relocating could lead to the parent suffering depression which could affect their parental capacity therefore not be in the child’s best interests. Sometimes, this has been a deciding factor in a relocation matter. Here, the mother did argue that if she wasn’t allowed to move, she would be unhappy; but this falls short of arguing that it will contribute to mental health issues like depression or anxiety.
Motivations of the relocating parent
Although a parent wishing to relocate does not have to prove they have a “compelling reason” to want to move, their reasons and motivations are still taken into account.
The mother argued her moving would put them in a better economic position than now. But she wasn’t able to convince the judge that her current career prospects were so grim or that the new location provided so great an opportunity as to justify a move. And,
“The evidence does not persuade me that the position at the Employer M will provide Ms Townsend with such a significantly enhanced income or improved career prospects to warrant dislodging X from her current environment.”
(Note that this comment suggests that if the income or career prospects were significantly enhanced or improved, it might satisfy a court that relocation is in the child’s best interests.)
Ultimately, the court found that the “principal driver” for the mother’s relocation plan was “her desire to build a life with [her new partner]”. The court said the mother was also secondarily motivated by her career aspirations as well as the “desire to put distance between herself and [the father]”. In other words, it wasn’t about putting the child’s needs first.
Is the relocation well thought out?
The courts want to see evidence that a relocating parent has carefully and comprehensively thought out the move, including working out how new living arrangements would work and whether employment will be available, and so on. However, it’s important not to go so far as to create a “fait accompli” – where the move has been finalised prior to obtaining permission in order to create a sense that the move is inevitable. For example, in this matter, the mother had accepted a job offer as well as signed a rental lease in the new location prior to obtaining permission to move. The judge in this matter suggested this was done to make the father feel that the wheels were in motion and that he had no choice in the impending relocation.
Not disrupting the well-settled child
The courts generally prefer not to uproot a child from a well-settled life and plunge them into uncertainty or instability. In this matter, the judge was persuaded that a relocation would needlessly disturb the girl’s very well-settled life in Melbourne. Instead, the move would “involve a new city, new house, new school, new friends, new activities and new care arrangements, to mention a few [changes]”. Whether or not a child will respond positively to so many changes depends on the individual, but the girl’s resilience was “untested” and should not be “left to chance”, said the judge.
Another thing the courts will examine is the practicality and logistics of any proposed arrangements. This includes looking at financial and time stressors that a new, long-distance parenting arrangement presents. Sometimes, despite the best intentions, the cost of implementing a shared-care regime over a long distance, over time, is simply unrealistic. In this matter, the mother insisted she could find a way to minimise the costs of regular Melbourne-Canberra changeovers, but the judge was sceptical.
Finally, the courts will also take into account the subject child’s views about parenting arrangements. The views are given weight according to the child’s age and maturity, and aspects such as potential coaching or bribing. In this case, the girl was relatively young but the judge placed “considerable weight” on her views, which were that she wanted to keep seeing each of her parents about the same amount of time.
If you want to move away with the kids, it’s really important not to simply take unilateral action and leave without your co-parent’s agreement. If the left-behind parent takes court action, the children can be compelled to be returned to their original place of residence at an interim stage before an eventual final hearing to determine the issue of their relocation. Instead, see a family lawyer for advice and strategies tailored to your circumstances. At Alliance Family Law, your first no-obligation conference is free, so why not give us a call today to make an appointment?
You can read this judgment in full here.
You might also like to read our blog on how to build your case for relocation.
For family law advice regarding a potential relocation of your child, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice for your situation, please contact Alliance Family Law.