I was recently briefed in a relocation case, where I represented a mother who wished to relocate interstate with her 7-year-old child, a 2.5 hour plane trip from Sydney and the father sought the child live with him. There had been a long 7 year court history, based on animosity and mistrust between the parties, where the child had been exposed to a disrupted care history and knowledge of the level of acrimony between the parties. The mother had unilaterally relocated interstate, with the child, when the relationship broke down and she was subsequently Court ordered to return to Sydney. However, five weeks prior to final hearing the mother’s case altered from a ‘live with‘ case to a ‘relocation interstate‘ case. Did the relocation issue mean the Court had a different category of case to determine?
Each relocation case is determined according to Part VII of the Family Law Act 1975 in relation to the best interests of the child. In Sayer v Radcliffe and Anor  FamCAFC 209 at [47-48] it stated:
“It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders…….the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.”
On a practical level, a few considerations in a relocation cases are (there are more):
- What plans or opportunities are open for a relocating parent to find employment or up-skill (when relevant) if allowed to relocate?
- What, if any, are the existing supports for a relocating child and parent? (financial, emotional, psychological)?
- Does the child have an existing relationship with people or family s/he will be living close to or with?
- Will the relocating parent facilitate a meaningful relationship between the other parent and child?
- Will the parent, who wishes to relocate, be disadvantaged in any way, if relocation is not permitted?
- Will relocation stop the level of acrimony between the parties, thereby assisting the child not to have to manage the conflict between the parents, every time s/he moves between houses? What positive effect will that have on a child?
- What are the orders sought if relocation is not permitted and/or if relocation is permitted and whilst party and child still in existing location?
- How to overcome the practical expense and difficulties associated with the child maintaining personal relationships with both parents on a regular basis?
- What orders are appropriate for time with the non-resident parent? Who pays for travel for the child to visit the non-resident parent?
- What would be the appropriate case theory and orders if both parents had known parenting deficiencies and had used drugs in the past year?
After the final hearing of the above case, where I represented the mother, Her Honour in a written judgment, ordered the child and mother be permitted to relocate interstate with the mother to have sole parental responsibility. Orders were made in respect to information sharing, Skype and telephone communication, injunctions, time spent with the non-resident parent and other ancillary orders. Just because a party doesn’t request relocation until the last-minute doesn’t mean its automatically doomed to failure. However, it does require much time, effort and preparation to ensure your client has the best possible prospect of a successful outcome in such a situation.
If you are looking for a barrister who successfully manages and achieves favourable results in relocation cases, please contact Louise on either (02) 9336 5300 or email@example.com