A relocation dispute can arise when one parent wants to move away from the place where the children have been living. Such a dispute may arise shortly after separation or many years after separation in circumstance where there may be well established care arrangements in place for the children. There are many reasons why a parent may seek to relocate from the area in which they have been living – employment opportunities, family support or a new partner are just a few.
There is no power under the Family Law Act 1975 to prevent a parent themselves from moving. Indeed s.92 of the Constitution gives individuals the freedom to move across State borders. The issue arises however when a parent seeks to relocate with children under the age of 18 without the consent of the other parent. It is in these instances where a court exercising jurisdiction under the Family Law Act may be called upon to intervene and to make orders to resolve the dispute.
In the case of AMS and AIF (1999) 199 CLR 160, the High Court took the view that freedom of movement had to be subordinated to the interests and welfare of the children. In Morgan v Miles (2007) 38 Fam LR 275 Justice Boland suggested that the task was one of weighing and balancing the child’s best interests with the right of the proposed relocating parent’s freedom of movement.
The leading cases on relocation make it clear that the best interests of the child is the paramount but not sole consideration and that the parent seeking to move is not required to give compelling reasons for the proposed relocation.
Significantly, relocation cases are governed by the same principles in the Family Law Act as other cases in which parenting orders are sought.
In 2006, amendments were made to the Family Law Act. Pursuant to these amendments, when making parenting orders, there is a rebuttable presumption that both parents should have equal shared parental responsibility. Equal shared parental responsibility means that parents are required to consult with each other and make a genuine attempt to reach an agreement about decisions which affect the long term care, welfare and development of the child. Such decisions include decisions relating to the child’s health, education and religion.
Once an order is made for equal shared parental responsibility, the court must then consider whether an order for equal time or an order or substantial and significant time should be made, provided that such order is reasonably practical. Of course, an order for equal time or substantial and significant time would usually necessitate both parents living in close proximity to each other. However, by definition, relocation cases invariably involve an application by one parent to move away with the result being that the parents would not be in close proximity to each other.
The concept of reasonable practicality was explored by the High Court in MRR v GR (2010) FLC 93-424. In that case, the High Court stated that the court must consider whether a parenting order is reasonably practical in all the circumstances. In doing so, the court should make an assessment of the practical considerations such as employment, accommodation, family support, each parent’s emotional support, disparity between the income of the parents and other like matters. In other words, the court should not make an order for equal time or substantial and significant time unless that order would be reasonably practical.
Relocation cases can be complex so if you are, or your former spouse is, seeking to relocate with the children, it is critical to seek advice early.