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Relocation and Parenting Matters

After parents separate, their children often spend time with each parent in separate residences. It is therefore practical for parents to establish households relatively near one another and close to schools and extended family members. When one parent wants to move a long distance away, this can present difficulties when it comes to sharing parental care. It is therefore common for relocation matters to arise in family court proceedings, as one parent tries to prevent the other from relocating, especially if the move is interstate or overseas. It is also common for the court to be asked to make recovery orders that require a child to be returned to their usual place of residence, usually after one parent has made a unilateral decision to relocate with the child. However, as this article explains, it is significantly less common for a court proceeding to concern a request by one parent to relocate another parent against their will.

Relocation orders

Sometimes a parent will give consent for their child to relocate with the other parent, even if it means that the child has significantly reduced time with the parent who remains behind. For instance, a parent may permit an overseas move because they feel that it is in the best interests of the child to have an international experience. More commonly, the parent who is not moving resists the proposed move as they do not wish to lose time with their children. In such a case, the parent who wishes to move must apply to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) for a relocation order. Under the Family Law Act 1975, the court has the authority to make relocation orders that prevent a parent from moving if it will not be in the best interests of the child.

Forced parental relocation

The court has the authority to compel a parent to relocate to a specific place. The underlying proviso is that the relocation must be in the best interests of the child. Authority on this issue comes from common law precedent, from Sampson & Hartnett (No 10) (2007), where the court established its powers to require an adult to live in a specific place. In this case, the court asserted that, as it clearly has the power to prevent relocation, “it would be surprising if it was not within its power to order a person to relocate”. However, the court did note that forced relocation orders are more drastic than orders that prevent relocation. Forced relocation orders are made rarely, as they do impose an unusual and burdensome restriction on the parent’s freedom.

Case study

In the recent case of Pascall & Heath [2022], the appeals division of the court shed further light on forced relocations. In this case, the mother was appealing parenting orders. One of the parenting orders made by the lower court required the mother to relocate, because she currently lived 40km from the father’s home, and the proposed order would require the mother to relocate to a home that was within a 30km radius. The court found that the father was unable to move away from the suburb where he was currently living and that the mother’s current home was too far to allow for effective co-parenting. The request for relocation of the mother was originally supported by the Independent Children’s Lawyer, on the basis that this order for relocation was in the best interests of the child.

During the appeal, the court found that nobody could give a coherent reason why 30km was the maximum distance that could permit effective co-parenting. The Appeals Court found that the decision that the mother must live within 30km of the father was arbitrary. It also found that the court at first instance did not properly consider the mother’s arguments for why relocation was not necessary in the interests of the child. The Appeals Court emphasised its disquiet about any order that is prescriptive as to where an adult must live. However, in this case, the court allowed the order to stand at a 40km limit, thereby allowing the mother to stay where she was currently living, but preventing her from moving further away from the father’s residence in the future.

Theoretically, a parent should be able to establish a new home wherever they want. In practice, any move needs to be close enough to the co-parent that it does not impede the child’s ability to see both parents. Still, it is rare for the court to compel parents to relocate to a particular location. In order to make such an order, there typically needs to be an exceptional reason that impacts the child’s best interests. If you need assistance with a potential forced relocation, please contact our experienced family law team on 1300 038 223.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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