Child Relocation and Parenting Orders
In most relocation matters a parent will seek to move to a location that would make it difficult for the child to spend time with the other parent. Wherever the child lives the Court will endeavour to ensure that the child should spend reasonable time with the other parent.
Consideration of Best Interests of the Child
The Court must consider the current, and prospective arrangements for the child and whether they would be in the child’s best interests.
Competing with this concept is the separation of the child from his primary carer. Where a child “has been in the primary care of a parent (normally the mother) since his birth,
that he has a meaningful relationship with that parent, and that it is in his best interests for that relationship to continue”
After finding that an order for equal shared parental responsibility was appropriate, the Court must turn its attention to the question of the parents having equal time with a child
If that was not appropriate because of distance as in most relocation matters then what time would be in the child’s best interests?
The task before the Court is to determine what parenting orders were in the child’s best interests. It is not to determine where the parent was “permitted” to live.
To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move.
One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the Court.
It is probably only in the circumstance of the significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
Exploring Alternatives to Restricting Freedom of Movement
Alternatives to restricting freedom of movement by one parent should be explored by the Court.
An order restricting the freedom of movement of the custodial parent should be made only if the welfare of the child clearly indicates that the other parent should have,
instead of regular weekly access, rather less frequent but longer periods of access.
As children grow older there can be advantages in the latter form of access.
Where the children have been in regular contact with the other parent, it is desirable in the interests of the children that they maintain their relationship with such parent.
However, when alternatives are considered, there is no preponderance in favor of weekly access provided that it is practical &
reasonable to arrange for less frequent but longer periods of access, e.g. 3 or 4 visits each year and for longer periods of time during the children’s school vacations.
Restricting Freedom of Movement
The Family Court is obliged to give careful consideration to the proposed arrangements of the parties … But the Court is not bound by the proposals of the parties.
The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.
cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her.
That being so, she runs the risk that her interests will not be properly taken into account.
To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate.
Importantly, a party’s “fall-back” or “backup” position is to be considered only if his or her primary proposal is not accepted and is not to be treated as if it was a primary proposal.
This is the paramount consideration that must be applied when deciding on a child’s parenting and relocating overseas. A child’s welfare overrides the wishes of the mother and of the father.
So how did the Court decide (on relocating overseas) issue?
Neither the ICL nor the mother pointed to evidence that would support a finding that the child was at risk of harm from his father. The Court is bound to conduct a real review of the undisputed evidence of the facts.
On such a review the Court must determine if the child was at a future risk of harm when in the care of the father.
When considering the welfare of a child the Court must consider the effect on the child of a relocation to another Country which would cause the loss of his relationship with the father and the effect on the child of a relocation.
The likely influence of the mother if she were the only parent in the child’s life and the child’s inability to experience the reality of time with his father
Relocating overseas
if he were to relocate overseas must also be considered as to whether it is likely the relationship between the two would come to an end.
Would the relocation prevent the child from enjoying any relationship with his father during the remainder of his childhood?
Could the child rekindle his relationship with his father once he reaches adulthood?
All such matters must be considered in relocation matters. The same considerations apply if the father wished to relocate.
Relocation to another Country may enable the child to maintain a close connection with his maternal grandparents, extended maternal family, and local community if the mother was to relocate.
The mother is likely to be happier and more relaxed in such circumstances, particularly if she re-establishes stable employment.
Under such circumstances, the child may adapt well to the separation from his father. Again, these are matters to be considered.
The relevant provisions of the Family Law Act
When considering s 60CC(3) of the Family Law Act 1975 (Cth) considerations must be given to the nature of the child’s relationship with each parent and other significant persons (s 60CC(3)(b)),
the likely effect of change in the child’s circumstances (s 60CC(3)(d)) and the practical difficulty or significant expense involved in spending time with and communicating with the other parent (s 60CC(3)(e))
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