Relocation, Recovery Orders and the Court
Strictly speaking, relocation involves a residential move that results in a significant change to a child’s living arrangements making it difficult for that child to spend time with the other parent.
There are “push and pull” factors that may influence your decision to relocate with a child. Factors that may “pull” you towards a new location may include; family and friend support networks, employment opportunities and better living conditions. Factors that may “push” your choice of location may include; family violence, unemployment or loss of accommodation.
What to do if…
You wish to relocate:
- You should discuss with the other parent your desire to relocate and attempt to agree on ways that the other parent can maintain a meaningful relationship with the child notwithstanding any geographical distance.
- If you cannot reach agreement with the other parent on your own, you may wish to consider attending Mediation or Family Dispute Resolution before someone trained in facilitating people reaching agreement . If you and the other parent cannot agree to any arrangements at Mediation, then you may apply to the Federal Circuit Court of Australia for Parenting Orders that permit you to move out of the local area.
You have already relocated without permission of the other parent:
- You may be ordered back by the court if the relocation was not consented to by the other parent.
- If family violence has forced your decision to relocate, it is important to get urgent legal advice as if there are Parenting Orders are in place, you may receive penalties if you breach any of those Parenting Orders. Such penalties may include fines, good behaviour bonds and even jail.
The other parent has already relocated with your child:
- You can file for a Recovery Order with the Court.
- A Recovery Order can direct The Marshal, Officers of the Australian Federal Police (“AFP”) or Officers of State and Territory Police forces to locate and deliver the child to you.
- The AFP receives all Recovery Orders issued by all Courts across Australia, with the exception of Western Australia.
- A Recovery Order can be filed by:
– a parent of the child;
– a person who has parental responsibility for a child pursuant to a Parenting Order;
– a grandparent of the child;
– or a person concerned with the care, welfare and development of the child.
What if you don’t know where your child and the other parent have relocated to?
- You can apply to the Court to obtain a Location, Commonwealth Information, or Publication Order from the Court to assist Police locate your child.
It is important to note
- Police will not generally recover a child until you are in a position to receive the child and in close proximity to the “recovering” Police. This reduces the stress on the child and the necessity for the child to remain in police care.
- Any costs incurred in effecting the delivery of your child (ie. travel, food or accommodation) will be payable by you and will not be paid by the Commonwealth or State or Territory Police.
- Recovery Orders are valid for 12 months from the date of issue unless otherwise stated.
- The AFP will only accept and act upon a Recovery Order issued in accordance with Section 67U of the Family Law Act 1975 (Cth).
What is the Court’s view on relocation?
The Court will consider the best interests of a child as the paramount consideration but not the sole consideration.
The Court is unlikely to decide what is in the child’s best interests on an interim basis and allow relocation, except in circumstances of urgency (for example, if an Applicant is fleeing family violence). The Court’s reluctance stems from the potentially serious ramifications for the ongoing parental relationships of children concerned, especially when those children are young. The Court has determined relocation should not be decided against a background of recent events, which may have significantly altered the relationship of the child concerned with one of his or her parents.
At a final hearing the Court will consider the short and long term proposals of you and the other parent, your freedom of movement, your ability to communicate with the other parent and the benefit to the child of having a meaningful relationship with you and the other parent.
In the case of MRR v GR (2010) the parents lived with their child in Mount Isa. When they separated the mother and the child moved to Sydney. The father applied to the Court and the Court ordered an equal time parenting arrangement, with the mother to return to Mount Isa with the child. When the mother was living in Mount Isa she was surviving on welfare payments, suffering depression and living in a caravan. Due to her living conditions in Mount Isa the mother was not in a position to provide the emotional and financial support the child required. The mother appealed and the High Court found that equal time was not in the best interests of the child because it was not reasonably practicable for the parents. The mother was able to relocate to Sydney with the child and the father was able to spend weekend and holiday time with the child.
In the case of U v U  after separation the mother applied to relocate with the child to Mumbai, India. The mother was Indian, the father was Australian and the child was born in India. The High Court found that the mother had better employment prospects and a better support network in India. However despite the mother having better prospects in India, the majority view of the High Court found that the child should continue to live with the mother and in the Sydney/Wollongong area. The majority were of the view that denying the relocation allowed the father to maintain a meaningful relationship with the child, and was in the best interests of the child.
Reflecting on relocation
A proposed relocation brings to the fore all the social and economic connections people have, which may be with more than one place. As the Honourable Justice Kirby observed, the facts of every relocation case are ‘unique’ and have to be carefully analysed.
There is a tension in relocation cases when two competent parents wish to be involved in the child’s life, but one wishes to relocate with the child to a place sufficiently far away meaning that the other parent’s involvement in the child’s life will be diminished.
In cases concerning a child’s future there must be a balancing of the child’s interests with the interests of each of the parents. The interests of the child do not override the interests of the parents, they have to co-exist with them. Essentially the function of the Court is to balance these interests in a way that promotes the welfare of the child whilst giving appropriate recognition to the interests of the parents.
You should get legal advice if you want to move a significant distance from where you are living with the child and you don’t have the other parent’s consent.
Without consent the other parent may apply for a Recovery Order and you may be ordered to move back with the child.
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