Relocation Applications in Family Law

When a parent wants to move a child away from their other parent, usually so that the parent can move to another town, state or country, it is considered a relocation case by the court. These cases tend to be exceptionally difficult to settle, as a successful relocation case will usually involve the other parent’s time with the child becoming significantly restricted. However, relocation cases are still decided on the same basis as any other parenting matter, and there are no special rules that apply.

Relocation applications are usually brought by the primary carer for the child, as any other application is unlikely to succeed. A parent who does not have primary care for the child but who wishes to relocate may bring an application for orders varying their time spending arrangements with the child but will usually not seek that the child relocate with them.

Basis of the Decision

At the centre of any decision about parenting issue before the court is the question of what is in the best interests of the child. This is the guiding hand that will inform any decision made by the court. However, in the matter of some relocation cases, sometimes it will not so much be a matter of what is in the child’s best interest, but a matter of what is the least of the worst options available. The court will weigh up each parent’s proposal for the child and make the orders that they consider to be best. They might decide to rely entirely on one parent’s proposal, mix elements of various proposals, or make entirely separate orders.

As such, it is undeniable that there is a great deal of discretion available to the court when deciding parenting matters. It is important that you provide a clear and well-thought-out narrative and proposal to the court, to maximise your chances of a success relocation application.

When can you relocate?

Strictly speaking, all parents remain entitled to their own freedom of movement. This is something that many parents misunderstand when discussing relocation cases. The court cannot and will not stop a parent from moving somewhere else if they wish to, except in extremely limited and special circumstances. In Sampson & Hartnett (No. 10) (2007) FLC 93-350, the Court made plain that a forced relocation of a parent would only occur ‘at the extreme end of the discretionary range’.  The court would need to find that there is some kind of rare and exceptional circumstance to justify that coercive order. The courts are generally reluctant to interfere in an adult person’s right to choose their own residence and place of work.

Our family law team can advise if such extraordinary circumstances apply to your matter.

However, the court can and does regularly make orders for where a child should live. This might involve a change in the primary carer for the child in situations where the court decides the child should remain in their current place of residence, but when the parent who wishes to relocate decides that they will relocate regardless.

To maximise your chances of a successful relocation application, it is important to follow these steps:

1.     Try and negotiate with the other parent to see if they will agree to your relocation without ever needing to go to court. You can sign a parenting plan or make consent orders regarding how your parenting arrangements will be. You might even find that the other parent is willing to relocate to the new city with you to continue your current arrangements. We recommend that you speak with a solicitor to consider the practical and legal ramifications of your proposed plan, and to ensure any written agreement correctly states your intent.

2.     If you cannot reach an agreement, speak with your solicitor about preparing to lodge an initiating parenting application with the court. This will formally commence court proceedings.

Unless you consider yourself or your children to be in danger, we do not recommend relocating with the children without the other parent’s explicit consent. In such a situation, it is very likely that a court will simply order you to return the children to their original place of residence, and you will have started your court proceedings on the wrong foot. As set out in Morgan & Miles, the court held that arrangements that alter the child’s present stability are best addressed at a final hearing, not during an abridged interim hearing.

Of course, if you believe that you or the children are in danger, whether due to family violence or abuse, it is sometimes necessary to move first and make the legal applications later.

In such a situation, it is necessary that you contact a solicitor as soon as possible after your relocation so that you can get prompt legal advice about how you can remain in your new city or town.

Reasons to Relocate

In A v A: Relocation Approach (2000) FLC 93-035, the court reiterates the principle that a parent who wishes to move does not need to have a compelling reason to do so. However, in practice, this is not necessarily true. To convince the court, it is generally still necessary to provide some persuasive or good reason to relocate. Some of the reasons the court has considered sufficient reason to grant a relocation are:

1.     Financially advantageous, such as being able to live rent-free with a family member;

2.     Professionally advantageous, such as being able to access better employment opportunities, or a higher paid job;

3.     Family support, such as having a grandparent around to look after the child when the parent is at work;

4.     Spouse location or work, when the parent has found a new partner;

5.     Cultural or religious reasons;

6.     Escaping from family violence, usually by the other parent but may extend to other persons;

7.     Feeling homesick;

8.     The impact on the primary carer’s happiness and, relatedly, the influence their happiness (or unhappiness) will have on their capacity to care for the child;

9.     Mental health, such as needing to escape a place of trauma or needing family and community support for their mental health.

Relocation is not a decision to be made lightly. It is very likely that a decision to relocate may cause friction in an otherwise amicable co-parenting relationship. Even in the most peaceful of relationships, relocation applications will bring about significant changes to a child.

It is important that any relocation application brought to the court demonstrate that you have fully considered the emotional and practical ramifications it will have on your child and their relationship with their other parent, and that you are putting forward a proposal that will preserve those relationships to the fullest possible extent. To read a common relocation scenario and potential resolutions, click here.