Family Law Relocation Matters – Legislation and Case Law

Under Part VII of the Family Law Act 1975 (“the Act”), the Court has the power to make parenting orders in relation to a child, including Orders surrounding proposed relocation.

Emphasis on Co-Parenting

Section 61DA of the Act states that court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (except in cases of child abuse or domestic violence).  Equal parental responsibility refers to parent’s sharing the decisions which affect major long-term issues in a child’s life, such as the quantity of time spent with each parent, where the child lives, and the school they attend.

In the case of H v H (2007) Federal Magistrate Altobelli (as he was at the time) stated that it is impossible to believe that this presumption is intended to virtually eliminate relocation applications.

Court Must Consider Orders for Equal or Significant and Substantial Time

Section 65DAA of the Act provides that if a court makes a parenting order providing for joint parental responsibility, it must also consider whether the child spending equal time or significant and substantial time with each parent would be in the best interests of the child, and whether this is reasonably practical.  In considering whether an Order would be reasonably practical under this section the Court takes into account multiple factors such as the distance the parents live from each other, the capacity to implement an arrangement for the child to spend time with both parents, and the impact on the child (sub section 5).

In the case of MRR v GR (2009) the High Court drew an important distinction between considerations of the best interests of a child, and questions of reasonable practicality when determining what time a child should spend with each parent.  The High Court found that a Court cannot treat the answer to whether equal time is in the best interests of the child as determinative of whether an Order should be made and accordingly avoid considering whether the relocation would be in the child’s interests.  Instead questions of the best interests of the child and reasonable practicality are both important considerations.  In most relocation cases an Order for equal time will not be reasonably practicable and the Court should then proceed to consider whether an order for significant or substantial time would be in the child’s best interests and whether this is reasonably practicable.  This process requires consideration of the Applicant being a resident of the proposed relocation destination.

Child’s Best Interests

Section 60CC of the Act sets out the primary considerations that a Court must consider in determining what is in a child’s best interests.  These primary considerations are:-

(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In making a determination as to what is in the best interests of the child the Court will take into account the multiple additional considerations set out in section 60CC.  The Court will then balance these considerations up with the impact the proposed relocation will have on the child.

In the case of M v S Judge Dessau expressly rejected a submission that there is an onus on the party seeking to relocate.

Whether a Determination can be made on an Interim Basis

In Morgan v Miles the Full Court of the Family Court stated the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement. The Court held that arrangements which alter the child’s present stability should not be determined at an abridged interim hearing, but at a Final hearing.  In this case the Court ordered the Mother to return the child to the previous location, until the issue of the proposed relocation could be considered at a Final Hearing.

 

Emma Shuttleworth

Lawyer

eshuttleworth@mtpartners.com.au

 

McLachlan Thorpe communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.

Recent Posts

Leave a Comment