Skip to main content
Children and custodyDivorce and separationFamily court

Relocation family law matters: what a court considers

By March 22, 2018October 26th, 2021No Comments

Relocation family law matters are some of the most difficult and traumatic of all matters passing through the family courts.  On the one hand, parents being potentially left behind face the prospect of having their children move a very long way away, even to another country, with an inevitable impact on the relationship they currently enjoy with the kids. On the other hand, parents who desperately wish to move but are not permitted to can find themselves essentially trapped where they are, because of the need to share the children’s care and retain the status quo.

As an article in the UK’s Family Law notes, a relocation family law matter is one of the hardest decisions for a judge to make because the choices are “starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground.”

Whether it’s an “internal relocation” within the country, or an “external relocation” somewhere overseas, our family law courts take the same approach as those in the UK, where it is termed “the welfare principle”:  the best interests of the child are paramount. Even though both parents are undoubtedly affected by a court’s ultimate decision on relocation, it’s the effect on the child that the court holds paramount, with their best interests always at the forefront of any decision made.

However, in balancing the competing proposals put forth by each parent, the courts will consider both the impact of a move on a parent and their child, as well as the impact on a parent and the child of refusal.  The courts will consider a relocating parent’s motives for taking the child away (for example, is this actually a vindictive act?) and similarly, the left-behind parent’s motives for opposing the application (is this an attempt to control a former partner’s life?).

How can you prepare yourself for a relocation family law case?

The article points out that a proposal to relocate needs to be “realistic, practical, well-planned and respectful of the rights and feelings of the parent left behind.”

Unfortunately, cases often pass through the courts having failed because the parent wishing to relocate has not demonstrated having put enough thought and planning into a potential move.  As such, to have a chance of success, thorough research needs to be undertaken and presented with regard to things like: accommodation at the new location, access to and quality of services such as healthcare and schools, what the situation is expected to be in terms of family ties and friends in the new location, what the relocating parent’s employment prospects are, the parent’s financial situation in the new location, and so on.

If it’s intended to be an overseas relocation, applicants should show they have considered issues such as the political situation in the new country and the child’s safety there, any visa and immigration issues, and research into transport links between the new country and the old country, for example.

The court will also want to know details of any new “relationships of relevance” (e.g. step-parents), what the child’s wishes and feelings about the move are (depending on their maturity), and how resilient the child is to be able to cope with the move.

Importantly, a court will want to know that careful consideration has been given to the parent being left behind—what will be the effect on them? How will a relocating parent facilitate and promote contact and will they present a good picture of the left-behind parent to the child?  Questions need to be addressed, such what the effect on the relocating parent will be if they are not permitted to relocate, and whether there is any realistic possibility the opposing parent could also move.

Information that a court will find useful in understanding the practicalities of the situation should be gathered and provided (discuss this with your solicitor as to what exactly you should provide). This may include things like school brochures and comparative information about a chosen school, maps showing where new accommodation will be in relation to airports, schools and public transport, and transport schedules (details of flights to and from the old and new locations—their frequency, cost, and links with other necessary transport).

On the other hand, responding to a relocation family law matter requires that the potentially left-behind parent researches and demonstrates evidence of the merits of the status quo.  The parent will want to show the court how the loss of daily contact will affect them, and present arguments as to why the relocating parent could actually stay where they are.

Try to be as objective as you can, and write down the pros and cons –even just for yourself, if not specifically to share with your lawyer or the court—will help you get a more realistic overview of how a court may view your case and identify any weaknesses in your case.

Because the stakes are so high, we recommend you always seek advice from a family lawyer experienced in relocation cases, to ensure you give yourself the best chance of achieving your goal. If you need assistance with a relocation family law matter, please do not hesitate to contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Source: Family Law

You may find our previous blog on relocation useful.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal.

Author

Call Now Button