How Do Separated Parents Resolve a Relocation Case in Family Law Matters?
In family law matters when there are children involved it’s not uncommon for one of the parents to wish to relocate to another town or city for possibly work reasons and they wish to take the children with them.
Accredited Family Law Specialist Clare McCormack discusses the Court’s views on cases pertaining to relocation.
Intro: You’re listening to a South Geldard Lawyers podcast.
Dan: In family law matters when there are children involved it’s not uncommon for one of the parents to wish to relocate to another town or city for possibly work reasons and they wish to take the children with them. Well how does a court view this?
Dan: Well today I’m with Clare McCormack an accredited family law specialist from South Geldard lawyers. Clare what typically is a relocation case?
Clare McCormack: Relocation cases are a name given to a suite of cases where one parent wants to change the child’s residence and to do so would make it significantly more difficult for a child to spend time with the other parent because of the new location or residence. It’s an interesting question actually because we hear the term relocation case used all the time in our area of law, but strictly speaking it’s actually not a separate category of parenting case within the family law legislation. They’re not determined by different principles or different rules. They’re still the same law that governs all parenting matters and that’s really underpinned by what we call the Paramountcy Principle, which is what is in the children’s best interest, but I guess anecdotally we tend to see a lot more of the relocation cases and I think that comes down to globalisation really. It’s easier to move, work across state lines, overseas. People date online. People fall in love. With the evolution of FaceTime communication’s effortless, so I think that’s the reason we see more and more of these relocation cases coming through the courts.
Dan: Are these applications straightforward Clare?
Clare McCormack: Look I think as far as parenting applications go, relocation cases are probably historically the most highly contentious applications. They’re notoriously difficult and that’s really because it really does potentially affect a child’s ability to maintain an ongoing relationship with the other parent that’s getting left behind.
Dan: So what factors does a court take into consideration prior to approving one of these applications?
Clare McCormack: They’re really the same factors that a court looks at when they’re determining any parenting matter and the cornerstone of that is the best interests of the child. The first step is whether they’re looking at equal shared parental responsibility in relation to the longer term decisions to do with the children. The court then must look at whether equal time is appropriate, but in that assessment of whether equal time is appropriate, they’ve got to look at whether it’s reasonably practicable and also whether it’s in the children’s best interests and there are various factors that the court looks at when they’re determining whether it’s in the children’s best interests.
Clare McCormack: I won’t go into all of those today, but things like children’s wishes, the relationship with their parents and other significant persons. The individual child and characteristics of the child, culture, things like that. If equal time isn’t going to be reasonably practicable and isn’t going to be in the children’s best interests, then the court must look at substantial and significant time and that’s really where we have one resident parent and the other parent is spending a combination of weekday time and weekend time, and certainly we go through the same analysis of whether that’s in the children’s best interests or reasonably practicable and a determination as a question of fact as to whether equal time or substantial or significant time is appropriate needs to occur even where there’s a relocation application on foot.
Clare McCormack: The sort of factors that we see coming through in a lot of the relocation cases and facts that the court are looking at are things like family support being elsewhere, spousal employment being elsewhere, spouse location, maybe financial benefits or occupational benefits or academic benefits being elsewhere. I think the thing to remember though when you’re looking at a relocation application is that the court is going to look at the needs of the children and those needs are going to trump any of the needs of the parents in the way that their application is run, so if your application to relocate is all about you and what you need, then that’s not necessarily going to satisfy the court as to what’s in the best interests of the children.
Dan: Clare, I was going to say that obviously it would prejudice the application if the relocation has already occurred, like I’m just thinking that one parent might go, okay look I’m taking the kids and we’ll sort out the other stuff when we get to the new destination. Is that the case?
Clare McCormack: Look, I definitely think that those parents who unilaterally move without the consent of the other, tend to suffer a credibility issue with the court from the very beginning, so in those situations if the parent relocates without consent and the other parent who’s left behind is the one that brings the application for what we call a recovery order for those children to be returned and then the matter proceeds to a trial on what arrangements are going to be in the best interests of the children, I think the parent who’s moved unilaterally starts on the back foot. So certainly my advice to parents who come to me contemplating a relocation is a) consult the other parent and try and get their consent. B) if they don’t agree you should apply to the court for orders allowing you to relocate and that should be your second step rather than moving without either the consent of the other parent or an order that allows you to do that, and I think that is particularly important in cases where there are existing orders, because obviously you also risk being in contempt of court if you have existing orders and then you relocate and are no longer abiding by the terms of those legally enforceable orders.