What you need to know if you want to relocate interstate with your child

There are a number of reasons you may wish to relocate interstate with your child following a separation. You may have better support, family or close friends elsewhere, your new partner might live in another State, or maybe you simply want a fresh start where you aren’t running into your former partner at the same café every weekend. Whatever the reasons might be, there are important legal requirements to consider before relocating your child interstate.

Parental responsibility & relocation

Generally, one parent should not change a child’s place of residence without the consent of the other parent or a Court Order. This is because (since 2006) under the Family Law Act there is a presumption that parents equally share in the parental responsibilities for a child. This puts an obligation on parents to consult and reach agreement before making decisions that affect a child’s long-term care and wellbeing, with relocating a child’s primary place of residence being one of those major long-term decisions.

To relocate your child interstate, you will require either sole parental responsibility; a Court Order permitting the relocation; or the other parent’s consent. If you secure sole parental responsibility, you are the only parent who can make decisions about the child. This means you do not need to consult with your former partner about decisions such as interstate relocation.

It is the preferred approach, given the presumption of equal shared parental responsibility that you therefore seek permission rather than forgiveness.

A parent who moves a child without consent risks a Court ordering that the parent return the child to the original location of residence, at least until the matter can be properly heard and determined by a Court.

The Federal Circuit and Family Court’s approach to relocation matters

Over the years the Court has set down some guidelines when deciding relocation cases. Here are 9 things you need to know about how the Court approaches relocation cases:

1.????????The paramount consideration is still the ‘best interests of the child’, but the Court has acknowledged that this is not the sole consideration.[i] Considering the best interests of the child as paramount does not mean the Court can ignore the legitimate interests and desires of parents. If there is a conflict between these considerations, the child’s welfare and rights are the priority.

2.????????This is the test regardless of whether the primary issue in the case is residence or relocation. The Court cannot proceed to determine the issues in such a way that separates the issue of residence from that of relocation and the best interests of the child.

3.????????The parent who proposes the move does not need to justify or show compelling reasons for the move.[ii] The parent who opposes the move does not need to show compelling reasons against the move.

4.????????Neither parent bears an onus of proving that the relocation should or shouldn’t happen.[iii] In determining whether a proposed move is in a child’s best interests, the Court is required to identify and address the relevant competing proposals made by each of the parents.

5.????????The Court prefers to have expert evidence available at any hearing when determining relocation cases.[iv]

6.????????Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests.[v] While it is accepted that the Court has the power to make coercive orders for a parent to remain living in a place against their will, it is at the “extreme end of discretionary range” and there should be extreme factors to warrant the use of this discretion. [vi] It is imperative for a Court to explore and consider alternatives to restricting a parent’s freedom of movement, particularly when the effect of that is a primary care giver living in a place that is not of their choosing.

7.????????Arrangements which will be in the child's best interests should not be determined in an abridged interim hearing, unless there are some extreme or exceptional circumstances for doing this. The Court requires a full investigation of matters that can only occur at a Final Hearing given the far-reaching consequences for the child.?

8.????????As with any parenting case, subject to affording the parties procedural fairness, the Court is not restricted to parent’s proposals.[vii]

9.????????Finally, the Court must determine and explain which of the proposals it prefers having regard to the best interests of the child.

“Relocation cases are not a separate category within the Family Law Act … each is a case under Part VII relating to the best interests of the children but within a particular context and, … is to be determined in accordance with the principles contained in that Part.”[viii]

The difficulty with these cases is that most matters are not determined until a final hearing, due to the intractable conflict between positions of living here or living there; where there is no ability to compromise in the middle. In saying this, there are ways to successfully negotiate your parenting arrangements to enable a parent to move with a child if you are able to identify concerns and discuss the options for a solution, including:

a.??????Both parents moving to the new city;

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b.??????Sharing in the cost and time for travel between cities;

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c.??????Offering more time during school holiday periods with the other parent to ensure that your child maintains a meaningful relationship with them; or

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d.??????Maximising other ways that a relationship can be facilitated, including video calls and writing letters.

If you are wanting to move with your child, or are facing relocation proceedings where you oppose the move, get in touch and we will help you to consider your options and discuss how you might try to negotiate with your former partner to minimise the likelihood of litigating your relocation matter.

The decision to relocate your child’s primary residence interstate is often a complex matter requiring thoughtful consideration and specific legal advice. Foster Johnson Family and Collaborative Lawyers have plentiful experience advising about and effectively negotiating child relocation matters. If you would like further information, please contact us to book an appointment to discuss your options.?

At Foster Johnson Family and Collaborative Lawyers, we are conflict resolution specialists. We solve problems, not create them.

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[i] Star & Duggan (2009);

[ii] Styles and Palmer (2014); Malcolm & Monroe and Anor (2011);

[iii] McCall v Clark (2009);

[iv] McCall and Clarke (2010);

Starr and Duggan (2009);

[v] McCall v Clark (2009);

[vi] Oswald & Carrington

[vii] U & U (2002);

[viii] B and?B: Family Law Reform Act 1995?(1997) FLC ?92-755, their Honours Nicholson CJ and Fogarty and Lindenmayer JJ.