Relocation – Family Law Considerations In 2024
Relocation in family law refers to situations where a parent wishes to move with their child to a new location within Australia or internationally. This can be a complex and contentious issue, particularly when the child’s other parent opposes the move. The Family Court of Australia has a detailed process for assessing relocation applications to ensure that the child’s best interests are prioritised.
This article will cover how the courts assess relocation, what happens if parents cannot agree, the impact of the 2024 family law amendments, and other critical considerations in domestic and international relocation cases.
One Parent’s Rights To Relocate Needs To Be Balanced With The Other Parents Wishes To Have A Relationship With Their Child
Parents have every right to ask for relocation when their circumstances change, such as for new employment opportunities, family support, or a fresh start. Equally, the non-relocating parent has the right to say no, particularly if they believe the move would negatively affect their meaningful relationship with the child. However, the final decision will be made somewhere in the middle of these two positions—balancing both parents’ rights and the child’s best interests. The court focuses on what is best for the child, ensuring their emotional, physical, and social needs are met, regardless of the parents’ preferences.
How Do The Courts Assess Relocation Applications?
In child relocation cases, the courts assess each situation based on the Family Law Act 1975, with the paramount consideration being the child’s best interests. The Family Court does not automatically grant permission for a parent to relocate with a child, nor automatically deny it based on the other parent’s wishes. Instead, it carefully examines the proposed relocation and how it will affect the child’s relationship with their other parent, extended family members, and the child’s welfare.
The relocating parent will usually provide a valid reason, or reasons, for the move, such as employment opportunities, family support, or a significant change in their mental health or personal circumstances. The court will consider a variety of factors, including:
- The current parenting arrangements and the child’s living arrangements
- Whether the proposed move will allow the child to maintain a meaningful relationship with both parents
- The impact of the relocation on the child’s relationship with the non-relocating parent
- The level of family support in the new location
- The child’s need for stability and continuity in their schooling, social life, and community
- The mental health and emotional wellbeing of the relocating parent
- Whether there has been any family violence or other risks to the child’s safety
It’s Not About How Compelling The Reason Is, But What Is Right For Each Family
The Family Court typically does not require a formal compelling reason for relocation. Instead, the court focuses on whether the move is in the child’s best interests. While a parent seeking relocation may provide reasons such as new employment, better family support, or a fresh start, the court does not demand that these reasons meet a strict threshold of being “compelling.”
The court’s primary concern is the child’s welfare, including factors like maintaining a meaningful relationship with both parents and ensuring their emotional and physical needs are met. So, while the reasons for relocating parents are considered, they don’t necessarily have to be “compelling” in a legal sense. The court evaluates each case based on the unique circumstances and whether the relocation supports the child’s overall best interests.
Ultimately, the court’s decision is based on the case’s individual circumstances and how the proposed relocation affects the child’s best interests.
A v A: Relocation Approach – A View To The Children’s Best Interests & A Focus On Individual Case Merits
In A v A: Relocation Approach, the Family Court of Australia provided guidance on how relocation matters should be assessed. The court emphasised that the child’s best interests must be the paramount consideration.
In this case, the court considered the practical implications of the proposed move, including the impact on the child’s meaningful relationship with both parents, the relocating parent’s reasons for the move, and the feasibility of maintaining regular contact between the child and the non-relocating parent. The judgment highlighted the importance of evaluating each case based on its specific circumstances and the child’s long-term welfare.
2024 Family Law Amendments
In May 2024, significant changes were made to Australian family law, including amendments to the Family Law Act 1975. These changes impact parenting matters, including relocation cases, by focusing more on the best interests of the children and adjusting the framework for parental responsibility. Due to their very recent introduction, there is not a lot of case law to reflect on as yet regarding how changes will play out.
Equal shared parental responsibility, the weight given to meaningful relationships, and how the courts handle relocation applications in line with these amendments will become more apparent in the coming months and years. These changes reflect an evolving approach to parenting matters in Australia, aiming to balance the rights of both parents while always keeping the child’s welfare at the forefront.
Equal Shared Parental Responsibility vs Sole Decision-Making
One of the significant amendments relates to equal shared parental responsibility. Previously, when the court made an order for equal shared parental responsibility, it meant that both parents had to make long-term decisions together, including decisions about where the child lives and goes to school. However, under the 2024 amendments, the court can now allocate sole decision-making to one parent in certain circumstances, such as where there is evidence of domestic violence or where parents are unable to cooperate.
This change means that the court can grant one parent the authority to make decisions about a child’s living arrangements, which includes the decision to relocate, without needing the other parent’s consent. However, the court will still carefully assess the child’s best interests.
Equal Time Orders and the Meaningful Relationship Principle
The amendments also clarify that equal time orders are not automatically presumed in all parenting cases. The court will only order equal time if it is reasonably practicable for the child’s best interests. For instance, if a proposed relocation would make equal time arrangements impossible, the court may instead focus on ensuring that the child maintains a meaningful relationship with both parents, even if it is not equal in terms of time spent.
Domestic Relocations
In domestic relocation cases, the court assesses the move’s impact on the child’s relationship and wellbeing. This includes considering the child’s welfare in the new location, schooling, and access to extended family. The distance of the move, whether across the state or interstate, plays a role in determining whether the relocation is practical and reasonable for the non-relocating parent to maintain contact.
International Relocation Matters
International relocation cases involve additional complexities, particularly regarding international law. Australia is a signatory to the Hague Convention on International Child Abduction, which provides legal mechanisms for the return of children who have been wrongfully taken across international borders. As such, if one parent relocates internationally without the other parent’s written consent or a court order, the non-relocating parent can apply for a recovery order under the Hague Convention to return the child.
What Happens if Parents Cannot Reach an Agreement?
If parents cannot reach an agreement regarding relocation, which is frequently why they end up in court, the relocating parent must apply to the Family Court for permission to move. The court may issue a court order allowing or denying the relocation, depending on the facts of the case. Before applying to the court, the parents must usually attend family dispute resolution to try and resolve the matter through mediation. If a resolution cannot be reached, court proceedings may become necessary.
The terms can be formalised through a parenting plan or consent orders when an agreement is reached. These orders outline the parenting arrangements and can detail how the child’s relationship with each parent will be managed post-relocation, including arrangements for spending time during holidays, school breaks, or weekends.
How Can I Apply for a Relocation Order In Australia?
To apply for a relocation order in Australia, you’ll need to file an Initiating Application with the Federal Circuit and Family Court. It must clearly outline the proposed move, including a parenting plan or consent orders, outlining the proposed relocation and how it benefits the child’s best interests. The court will assess factors like the child’s relationship with the non-relocating parent, the reason for the move, and the overall impact on the child.
As with all family law matters involving children, it’s much better if you and your former partner can make a genuine effort to work with each other and reach agreement. If you want to organise the relocation of children, you may also need to change any current orders in place, such as Consent Orders, to ensure that your parenting agreement reflects changes in a legally binding manner.
How Can I Appeal A Relocation Order In Australia?
To appeal a relocation order, you’ll need to file a Notice of Appeal within 28 days of the original decision. Appeals are typically heard by the Full Court of the Federal Circuit and Family Court, and the appealing party must show that the trial judge made a legal error or that the decision was not in the child’s best interests. Appeals focus on legal grounds rather than re-arguing the facts of the case.
In international relocation cases, parents may also need to submit a Child Alert Request to prevent the other parent from taking the child out of the country without permission. It’s vital to get some legal advice, which our family lawyers can provide, about how to appeal an order.
Best Interests of the Children
Throughout all relocation matters, the child’s best interests remain the court’s primary consideration. This means that the court will not prioritise the parents’ desires or preferences over the welfare and development of the child. The Family Court and the Federal Circuit and Family Court consider factors such as:
- The benefit to the child of having a meaningful relationship with both parents
- The child’s emotional and psychological needs
- The impact of the proposed relocation on the child’s stability and routine
- The ability of the relocating parent to provide for the child’s needs in the new location
Family Violence Considerations
Where there is evidence of family violence, the court will prioritise the safety and wellbeing of the child. In such cases, the court may allow the relocation if it provides a safe environment for the child and the relocating parent. Additionally, the court may consider whether the child’s relationship with the non-relocating parent poses any risks due to past violence.
Court Orders and Relocation Applications
If a parent wishes to relocate, they must file a relocation application with the Family Court if they cannot obtain the other parent’s consent. The court may issue a child relocation order if it is satisfied that the relocation is in the children’s best interests. If the court denies the relocation, the relocating parent may still be required to stay in the current location and maintain the existing parenting arrangements.
Final Orders and Modifications
Once the court makes a final order regarding relocation, the decision is generally binding on a final basis. However, if there are significant changes in the circumstances of either the parents or the child, the court can revisit the matter. For instance, if a parent has a new job opportunity or suffers a decline in mental health, they may need to initiate a new court application to modify the previous final orders.
Relocation family law matters can be challenging, but the courts approach these cases with a clear focus on the best interests of the child. Whether the move is domestic or international, the courts consider the potential impact on the child’s relationship with each parent, family support, and overwellbeingeing. If parents cannot reach a written agreement, legal advice from experienced International Family Lawyers can help navigate the complexities of the process, ensuring that all necessary legal steps are followed.