R is for relocation – A-Z of Family Law

Post-separation, many parents find themselves in a position of questioning whether the location they are living in at that time, will remain that way long-term. It may be due to necessity (cost of living, housing stability), practicality (far from maternal and paternal families), or the interests of the children specifically (a lack of opportunities, poor schooling). There are a myriad of reasons why a parent may wish to relocate.

Naturally, parenting matters often involve issues and disputes that are much larger than simply the geographical location where a child lives; such as who the child lives with and the time they spend with the other parent. But if the parents are to live apart due to a relocation, the decision of relocation itself can be determinative of the rest of these disputes.

A relocation can occur in one of two ways: by consent, or by way of a judicial decision maker (typically a judge or a senior judicial registrar). However, for the very reasons above, Courts are cautious to make orders about relocations occurring on an interim basis, given the propensity for this decision to make the final outcome clear, and given the difficulties in making findings of fact on an interim basis.

Most relocations are made following a final hearing.

Once such decision was appealed in Eastling & Pariser [2024] FedCFamC1A 239. The father sought to overturn the trial judge’s decision that the mother be allowed to relocate with the children.

A summary of Judge Burt’s decision is as follows:

• The mother displayed a greater ability to understand and meet the needs of the children than the father [211].
• Family violence was perpetrated by the father against the mother.
• The children’s wishes were to remain in the mother’s primary care.
• The children were not at risk in the mother’s care.
• The parents had a difficult co-parenting relationship.
• The mother had a detailed and comprehensive plan for the relocation, including the benefits to the children of such a move.
• The mother’s proposed relocation would not have such an adverse impact on the children’s wellbeing that the mother should not be allowed to relocate on the basis of the children’s best interests [183].

The trial judge made reference to important, previous decisions of the Court, including Malcolm & Monroe and Anor [2011] FamCAFC 16 and Timms & Payton [2015] FCCA 3324.

On appeal, Justice Carew was tasked with assessing the father’s grounds of appeal; pertinently, Ground 1, being that Judge Burt had applied the wrong test when determining the relocation.

Justice Carew, however, was quick to note that “there is no test which applies to the adjudication of a parenting case in which one of the parties proposes a change in the children’s place of residence” [12]. Instead, section 60CC(2) of the Family Law Act 1975 (Cth) maintains priority.

A review of Judge Burt’s assessment of the relevant factors and considerations was met with support, with significant reliance on the discretionary nature of the exercise as being one which does not follow a test, but instead “principles or guidelines which … inform the exercise of a broad statutory-based discretion.”

The appeal failed on all other grounds, and was dismissed.

If a relocation case is being put before the Court:

1. Ensure that the details of the relocation are comprehensive and detailed, with all aspects of the proposed arrangements for the children supported by evidence.

2. Reference the relevant case law and try to find analogous cases.

3. Notwithstanding analogous cases, no one test is applied nor are past cases precedential; every relocation case will hinge on its own unique facts.