As family law practitioners on the Gold Coast, a place well known for its transient population, we are often faced with clients who are hopeful of relocating with their children after separation. The reasons for wanting to relocate vary, for some, they are drawn back to the support of extended family in their home town. While others the new location may present employment opportunities.

The common thread is the same in each case: the parent who has the majority care of the child intends to alter the child’s existing geographical location, and the ‘spends time with’ parent opposes the move.

Many of our clients are surprised to learn that our governing legislation, The Family Law Act 1975, does not define ‘relocation’.

Cases which involve relocation of a child are not treated differently to other parenting cases. The best interests of the child remains the paramount consideration and the factors to be considered are the same as in any parenting matter.

The established case law in Family Law tells us that the cases which fall within the ‘relocation’ category can involve a proposed relocation from as little as 115km, to an international relocation abroad.

What constitutes relocation in family law, and when is the consent of the non-relocating parent required?

In the case of D and SV (2003) FLC 93-137, the relocation involved a distance between Vermont South (an eastern suburb of Melbourne) to Drysdale (near Geelong), a distance of 115km.  In this case, the Full Court of the Family Court of Australia considered whether the principles of relocation should apply to such a short move.

In their decision, the Full Court remarked:

“It seems to us to be an approach that may be open in some cases. However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement.”  

So whilst even short distance relocations can be a point of contention, there is a clear reason why relocation cases are not defined by distance. To do so would be too objective, given that a geographical distance alone is not necessarily the only factor as to whether a child would be able to maintain a meaningful relationship with the parent who will not be moving. For that reason, the same provisions of the Family Law Act apply to short distance, interstate and overseas relocations and are each considered by the Court on a case by case basis. However, it is widely accepted and borne out in the case law, that the decisions of our Family Court Judges are often based on the proposed distance of the move, together with the existing parenting arrangements in play between the parties.

Would a move from the Gold Coast to Byron Bay be considered ‘relocation’?

To answer that question, the particular facts of the case would need to be assessed.

Would the proposed move interfere with the non-moving parent’s time with the children?

If the current parenting arrangements would be displaced by the relocation, would the proposed move affect the child’s ability to have a meaningful relationship with the non-moving parent?

Pursuant to the additional considerations in Section 60CC of the Family Law Act, there are a number of considerations relevant in a short distance relocation case, such as:

• How willing and able is the moving parent to facilitate a relationship between the child and the non-moving parent?
• How will the child be impacted by a change of living circumstances?
• What practical difficulties and expense will the relocation create for the child spending time with the non-moving parent?
• How old is the child and if appropriate, what are their views (if any) on relocation?

In our view, any proposed move which will require a change to the schooling arrangements and care regime between the parents, is likely to trigger a ‘relocation’ alarm for the non-moving parent, and would require their consent. If consent is not forthcoming the question then becomes, is the relocation in the best interests of the child?

What is in the ‘best interests’ of children was considered in the case of Curnow & Armfield [2012] FMCA. This case concerned two children aged seven and six, and a proposal by their primary care giver, the Mother, to relocate from Canberra back to a country town. The country town was less than two (2) hours’ drive from their current residence where the children had lived for several years. At the time of the Application, the Father was spending time with the children each alternate weekend from Friday afternoon until Monday morning, and each alternate Thursday night. Ultimately, the Court was required to balance the advantages of the relocation against the array of other considerations, including that the:

1. Children had been settled in Canberra for four years;
2. Children’s relationship with their paternal family would be significantly diminished by a relocation away from Canberra;
3. Elder of the children (aged seven) had expressed a wish to remain in Canberra (which, given his age carried limited weight but was still a relevant factor in the Court’s determination); and
4. Children’s ability to participate in weekend sport would be affected if they were to relocate, given they would be in different locations every second weekend.

In the end, the Court weighed each of these considerations but determined to permit the Mother to relocate with the children, remarking that if she were restricted to remain in Canberra:

“It would be difficult for her [the Mother] to overcome her feeling that she was being forced to remain in Canberra against her wishes by the father. I believe that her parenting capacity would be impacted on if she were forced to remain in Canberra. I believe that her unhappiness would be picked up by the children…”

“While the case insofar as the children’s best interests are concerned is a finely balanced one it becomes a clear cut case when I factor in issues of freedom of movement. In the best of all possible worlds the children would have more regular time with the father. In the best of all possible worlds he would be involved in their sporting and other activities. In the best of all possible worlds his mother would continue to be involved in their school… But I cannot restrain the mother from moving to [O] only to preserve the best of all possible worlds.”

 

When is a parent more likely to be able to relocate?

A review of case law in our jurisdiction also indicates that where the primary care giver can provide details of the advantages for relocation, their chances of permission to relocate are increased. Potential advantages include:

• That they will have increased job opportunities or earning capacity if they are permitted to move;
• That they are likely to have an improved mental/emotional state (corroborated by a medical expert) if they are permitted to move;
• That they will have significant family support if they are permitted to move; and/or
• That they are financially in a position to facilitate the practicalities of the relocation and ongoing contact with the non-moving parent.

For parents contemplating short distance relocation, the relevant factors for consideration may be of less impact to the child then an interstate of overseas relocation, but are nevertheless important to their best interests and to the decision of a parent to relocate.

If you are considering a relocation from the Gold Coast or any other location in Australia, and the relocation would necessarily impact the care/schooling arrangements currently in place, it would be helpful to seek legal advice at the earliest possible opportunity. Ideally, with some foresight we can achieve an agreed outcome for our clients wishing to relocate or if this is not possible, assist them through the Court process to ensure it is as expedient and economic as possible.