Following a relationship breakdown it is common and understandable to want to simply pack up, move and start afresh. People may wish to be closer to family, they may wish to start over in a new city or they may find a new partner who lives in a different city, state or even in a different country. While these motives are all relatable, when children are involved simply packing up and moving is often however more easily said than done. When the other parent objects to a child moving the courts are often forced to intervene.
Historically Australian Courts have often approached theses ‘relocation cases’ by confirming a parent’s general freedom of movement, unless it could be shown that relocation would be contrary to the child’s welfare. By giving people the freedom to relocate parents would supposedly be in a better position themselves to best care for the child.
Since legislative reform in the 1990s and 2000s this older approach has been amended significantly. Instead of focusing on the parent’s right to choose where they live, the current approach requires Courts to give paramount, but not sole, consideration as to child’s best interests. As in any parenting dispute, the child’s best interests is determined by reference to section 60CC of the Family Law Act and gives effect to two primary considerations (in addition to a number of secondary additional considerations):
The benefit to the child of sharing a meaningful relationship with both parents and;
The need to protect the child from harm.
The parent’s ‘right’ to choose where they live is then considered as a separate matter. While there is no longer any need for a parent to demonstrate a ‘compelling’ or ‘good’ reason for them wishing to move, if there is a conflict between the child’s best interests and the parent’s choice of residence the parental interests will generally give way. In determining relocation cases, while Courts will consider private arrangements proposed by the parties, the law ultimately pursues and responds to the child’s best interests. To this end the Courts are entitled to make any order they determine is necessary to further a child’s best interest.
Family law in this area is particularly complex. On the one hand Australian Courts generally do not have the power to order adults as to where they can live. On the other hand, the Courts are required to only make parenting Orders that are in a child’s ‘best interests’.
If you have any questions about this article, seek further information or need assistance in this particularly complex area of law please contact us on (02) 9525 8688.