Moving with children after separation – An overview and recent developments
The Family Law Act 1975 provides that even without a Court Order in place, both parents of a child who is not 18 have parental responsibility for the child. This legal position prevails unless it is displaced by a parenting order made by the Court.
Shared parental responsibility carries with it a requirement for consultation, with genuine effort and for parents to make a joint decision concerning all major long-term issues. Failing the ability to reach a joint decision, parent must seek an order from a Court to break the impasse.
A major long-term issue includes any change to the child’s living arrangements that makes it significantly more difficult for the child to spend time with a parent.
Any change to the child’s living arrangements that makes it significantly more difficult for the child to spend time with a parent is often referred to by the Family Court as a relocation matter.
Interim relocation orders
There have been many Court decisions regarding relocation. On an interim basis (before the Court has had the opportunity to hear all evidence and make a final informed decision about the proposals) the Court has stated its position in the case of Morgan andMiles (2007) FLC 93-343 where the Court held:
“…the very difficult issues in cases involving a relocation … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.”
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.
Final relocation orders
In the 2007 case of Taylor v Barker the Full Court of the Family Court states that a relocation proposal must be considered by the Court not only in the context of findings about what is in the child’s best interests, but also consideration of the child living for equal time with both parents, or alternatively, living with one parent and spending substantial and significant time with the other in the event of allocation of equal shared parental responsibility to the parents.
The Full Court stated that any Court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.
In the 2009 case of McCall v Clark the Full Court again endorsed its statements in Taylor v Barker and confirmed the necessity for the Court to canvass all of the available options, including relocation of the non-residential parent to a place nearer to the relocating residential parent and child. When weighing the advantages and disadvantages of the competing options, it is the advantages and disadvantages to the child, rather than the parties, which are pre-eminent.
Options in relocation cases
In any relocation case there are four alternatives:
Both parents remain living near each another;
Both parents move residence to a new area, and remain near each another;
The residential parent and child move away, but the non-residential parent remains behind;
The residential parent moves away without the child, relinquishing the child living with them and the child remains behind to live with the other parent.
What will the court consider for relocation orders?
When a relocation matter is heard by a Court a parent should present to the Court evidence about:
the child’s relationship with both parents including how strong is the child’s relationship is with the non-residential parent and what is the current level of their interaction;
the impact that would be caused if the residential parent cannot relocate;
if relevant, the availability of family support for the residential parent and child, including child care, financial assistance, and emotional support, in suggested relocation areas;
while neither parent bears an onus of proving the existence of compelling reasons for or against the proposed relocation, their reasons for and against the proposed relocation should be explained;
the reasons for the proposed relocation;
what travel arrangements will be made for the child’s continuing interaction with the non-residential parent, how will the child’s travel costs be paid, will the travel be too burdensome, are the travel arrangements sustainable for the long-term, will the meaningfulness of the child’s relationship with the non-residential parent be maintained, will the child cope and integrate into a new culture, language or school curriculum;
how will the orders be enforced if breached;
what reasonable alternatives are there to the planned relocation, for example can the residential parent’s new partner move instead, can the non-residential parent also move to maintain a relationship, is the non-residential parent ready for the child to live with them if the residential parent still moves, can visits to distant family still be frequent, how will the new job improve the residential parent’s financial and emotional position, can the non-residential parent pay spousal maintenance to cure the residential parent’s financial stress.