A recent decision of the Federal Circuit Court of Australia dealt with the issue of relocation.

An order was made that the parents have equal shared parental responsibility for the 5 year old child, but that the child live with the mother and for this purpose the mother be permitted to relocate the child’s primary residence from Melbourne to Queensland. It was further ordered that the child spend time with the father one weekend a month in Melbourne with the mother to be responsible for booking and funding the cost of travel including the costs associated with an accompanying adult.

The mother sought an order to relocate to Queensland. At the time of the hearing she was residing in Melbourne. Her parents and extended family reside in Queensland. The mother’s case was that she remains the primary parent and her parenting will be enhanced by her living in Queensland with ongoing actual and emotional support of her parents and her sister. She had previously been diagnosed with post natal depression and continues to suffer anxiety. She says that she has no similar support mechanisms in Melbourne given that her previous good relationship with her mother in law, has broken down. It was agreed that the father instigated, if not demanded, the cessation of the relationship between his mother and his estranged wife. The mother gave evidence that she was completing study and she needed the support of her family.

The father’s case was that he has a good, attached, and close relationship with the child which will be negatively impacted by relocation of the child to Queensland given her young age and consequent less frequent time together.

 The Relevant Law

The jurisdiction of the Court in making parenting orders comes from Part VII of the Family Law Act 1975. The task for the Court is to make orders which are in the child’s best interests.

The starting point is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child. Parental responsibility refers to all those duties, powers, responsibilities and authority which parents have in relation to children by way of law. Such responsibilities usually manifest in long term and important decisions for children in relation to issues such as education, religion, medical procedure and the like as opposed to day-to-day decisions.

The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with a parent has engaged in the abuse of a child or in family violence within the broad definition in the Act.

Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the court that it would not be in the child’s best interest for the parents to exercise that responsibility.

If the presumption of equal shared parental responsibility does apply and is not rebutted, then the Court is obliged to consider two discrete parenting options. Firstly, the Court is to consider whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable? If the answer to either of these questions is in the negative, then the Court must move to consider whether the child spending “substantial and significant time” with each of the parents is both in the child’s best interests and reasonably practicable.

The father in this matter did not seek equal time even if both parents live in the same locality. He sought substantial and significant time. Given the mother’s proposed relocation to Melbourne equal or substantial and significant time is not feasible on her proposal.

The Judge considered that both the mother’s and the father’s proposals were reasonably practicable. He placed significant weight on the emotional health of the mother as primary parent and her real need for a close family support network in her parenting of the child. It was held that the child’s best interests were served by her continuing to live primarily with her mother and that they be permitted to relocate to Queensland.