Article by Annette Lakey

An increasingly common scenario after separation is the desire by the carer of the children of the relationship to move away from the other spouse, whether it be due to employment opportunities, a more desired lifestyle, or a new relationship.  Such a relocation of residence may be to a town within the same state, or interstate or overseas. Such a move will normally involve removing the children from their school, their networks, and the other parent and possible extended family members.

The current case law on relocation makes it clear that there are no 'compelling reasons' required to be shown for relocation.  The court determines which of the different proposals put forward by the parties best reflects the best interests of the child.  It is often a fine balancing act between the rights of a parent for freedom or movement verses the rights of parents to see their children on a regular basis.  Relevant factors have included how far the parent wishes to relocate and the cost and practicality of the other parent spending time with the children, the age of the children, and the likelihood that the relocating parent will encourage the relationship between the other parent and the children if they live some distance apart.  Often the court has been loathe to prevent a parent moving with the children if the parties were in a financial position to ensure regular contact between the children and the other parent, and where the relocating parent can show benefit to the children of the move.  In more cases than not, the parent, particularly if seeking an intra or interstate relocation, has been permitted to move.

The likelihood of the courts allowing such relocation given the new concept of 'shared parenting' and the recent amendments to the Family Law Act, is in question. T here is now a presumption in favor of 'shared parenting', being shared decision making in relation to the children, and this presumption is only rebuttable in limited circumstances such as provable domestic violence.  Whilst the best interest of the child remains the paramount consideration, one of two primary considerations of the court in determining this is "the benefit to the child of having a meaningful relationship with both of the children's parent's."  In the event that the presumption of shared parenting is not rebutted, a relocating parent will need to show that the meaningful relationship between the parent and child can be continued notwithstanding the move.  Whilst if the move is only a short distance this may not be difficult to do, given the emphasis by the court of sharing time, and responsibilities between parents, a more long distance relocation may now prove more difficult to achieve.  Certainly unless there are financial resources to ensure that visits can occur on a very regular basis, it is hard to imagine a relationship can be the same if there is less quality contact between parent and child.  Such distance between parents also may make 'shared parenting' if not impossible very difficult.  Making such an application may now hold more risk for the parent with the children in their care, given that the court, in the event that the presumption of shared care is not rebutted, must consider whether the child's parents should care for the children equally or whether the other parent should have 'substantial and significant care of the children.'  If the court decides this, it is hard to imagine a case where a parent living in another state or country could have shared or substantial and significant care of the child.  Relocation may prove easier where the other parent has little or no contact with the children or there is a history of domestic violence in the relationship.

Annette Lakey, Hall Payne Lawyers