One of the most challenging aspects of a relationship breakdown is where there are children, and one parent wants to relocate to another location, which will impact on the parental rights of the other parent.
Relocation claims by one parent with a child have two key aspects, what is the best interest of the child and can the parent establish supportive grounds for the relocation. Section 60CC of the Family Law Act 1975 provides that each parent has a presumption of shared parenting. The court in assessing cases will consider the best interest of the child where there is a parent displaced by distance: section 60B of the Act.
The Family Court does not have the power to restrict where a parent should live. However, the court does have the ability to determine which parent the child will live with.
When the court considers relocation cases, the court will take guidance from cases such as Taylor v Barker (2007) 37 Fam LR 461 and Hepburn v Noble [2010] FamCAFC 111; BC201050544. In Taylor v Baker (2007) the court stated:
[62]… given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
Further at [81] the court said:
[81] … any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time”, if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
In MRR v GR (2010) 240 CLR 461; 263 ALR 368 the court held when assessing the best interest of the child, the court needs to consider the matters set out in section 65DAA of the Act, which requires that the child spends equal time or substantial and significant time with each parent.
The court is not bound to ensure a child maintains a relationship with both parents. However, the court is only obligated to determine the benefit of the child maintaining a relationship. There is a distinction between these two points, and the basis of this consideration is what is in the best interest of the child when making parenting orders: Jurchenko & Foster (2014) FLC 93 598; Mulvaney & Lane (2009) 93 404.
Therefore when the court is reviewing relocation cases, the first consideration is the matters relevant under section 60CC of the Act, child’s best interest, and whether there should be equal shared parental responsibility. Where this is the case then section 65DAA of the Act needs to be assessed on the basis of equal time, substantial time and significant time.
Under section 65DAA of the Act the court will consider what time a child should spend with the parent and is that in the child’s best interest.
In the case of Cowley & Mendoza [1010] FamCA 597 (16 July 2010) the court provided steps in determining relocation cases:
The best interest of the child to be considered with the presumption of shared parental responsibility.
Whether there is any family violence.
Considering section 60CC(3) of the Act whether parental responsibility should be shared equally.
Considering sections 65D, 60CA, 65AA of the Act.
Where the court considers that equal shared parental responsibility should be made, an assessment under section 65DAA should occur.
Where a parent is attempting to support their position for relocation with a child and subject to the above points raised, the parent needs to demonstrate (which the list is not conclusive):
The proposed living arrangements.
Employment prospects.
Support system available.
Education for the child.
The proposed communication and visitation time with the other parent.
The relationship strength between parents.
Why the relocating will benefit the child.
Any other supportive reason that will be in the best interest of the child where relocation is to occur.
The following cases provide guidance on how the court will consider relocation cases:
Oswald & Carrington (2016) FamCA 751
Stykes v Palmer [2014] FamCa 383
Carne & Feldt [2013] FCCA 1851 (14 November 2013).
Cavanagh & Kennedy [2003] FCCA 345 (15 March 2013).
When a relationship breaks down and there is a child or children, the parents are bound by what is in the best interest of the child, and where relocation of a child is required, there needs to be supportive evidence, which may also mean that a child psychologist is engaged, and the support of an independent children's lawyer is required to represent the child’s view in the court.
Relocation is determined on a case by case bases and the facts that support the move. The court has a broad discretion but will always place the best interest of the child first in each case. Therefore, before acting on any consideration of relocation for a child (children), it is prudent to get that legal advice.