Children & Relocation

​The introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 introduced a legislative intent in favour of substantial involvement of both parents and this it seems is having an impact on relocation decisions. 

This amending legislation places greater emphasis on the importance of involving both parents in the life of the child. The courts are directed in all parenting matters to apply the considerations found in Section 60CC of the Family Law Act and these considerations can impact on a parent’s freedom of movement. 

As with any parenting order, when deliberating on child relocation matters, the court must consider what is in the child's best interests pursuant to S60CA of the Family Law Act. In addition, consideration must be given to “the individual needs, desires, health and aspirations of the particular child.” [Harris & Caker (2010) FamCA 1046 per Murphy J at 48].

The recent ruling in the Federal Circuit and Family Court of Australia [Jardine & Overton [2021] FCCA 1574 (13 July 2021) per Beachhouse J] indicates that no major changes to the resolution of relocation issues have occurred. Relocation, for obvious reasons, remains an issue where the Court struggles.

Much of the current law in the matter of relocation was summarised in the judgement of Justice Peter Murphy in Pitkin and Hendry (2008) Fam CA 186, in that case, His Honour discussed the principles involved in relocation cases at paragraph 43 of his judgement and these are summarised as follows;

• no principles specific to relocation matters are available, they are simply cases in which parenting orders are sought in particular factual circumstances; 
• “Relocation cases” like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children; 
• Best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That include orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular; 
• All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals).  The proposals are (or should be) the expression of each party’s assessment of their children’s best interests.  “Relocation cases” are no different; 
• The issue of “relocation” (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests.  In truth, the proposals, including potential “relocation”, form part of the factual permutations within which best interests must be considered and findings made;
• The court is not bound by the parties’ proposals.  Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;
• Findings necessary to underpin an ultimate finding of “reasonable practicability” (s.65DAA(5)) can be, and often more appropriately are, conducted as part of the s.60CC exercise.  With any specificity inherent in those s.65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s.65DAA(5) within the overall assessment of best interests.  Those findings, must be applied as the s.65DAA process requires;
• The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption.  Obviously, that right must give way where the best interests of the children require it.  Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.”  

The following subsections of Section 65DAA of the Family Law Act as referred to by Murphy J are also relevant;
   (1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
       (a) Consider whether the child spending equal time with each of the parents would be in the interests of the child; and
         (b) Consider whether the child spending equal time with each of the parents is reasonably practicable; and
        (c) If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents

   (2) Subject to subsection (6), if:
       (a) A parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
        (b) The court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; the court must:
       (c) Consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
       (d) Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
        (e) If it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

 (5) In determining for the purposes of subsection (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
          (a) how far apart the parents live from each other; and
       (b) the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents, and
        (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
         (d) the impact that an arrangement of that kind would have on the child; and
         (e) such other matters as the court considers relevant.

In the 2006 case of B v B [2006] FamCA 1207 Warnick J held that 'the reality is, in my view, that in most cases the right to freedom of movement is a factor that pulls against the best interests of children, as otherwise assessed.'

We are happy to discuss the latest cases and legislation on child relocation.