Child Custody

Lawyers for Child Custody

Liverpool | Parramatta | Sydney

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Can a parent relocate?

After separation, a parent may wish to relocate to another region, state or country.

Where there are court orders in place concerning children, that parent will need to apply to a family court for orders allowing him or her to relocate with the children. If there are no court orders in place, it may still be advisable for the parent who wants to move to seek a relocation order.

Another scenario is the case where a parent apprehends that the other parent is about to relocate. In such a case, this parent can apply for an order for a family court to restrain the other parent from relocating.

What does the court take into account when deciding relocation cases?

In AMS v AIF (1999) CLR 160 the High Court considered the case of a mother who wanted to move to Darwin from Perth with her child.

The High Court ultimately returned the case to the Family Court of Western Australia to be re-heard.

Kirby J, in his judgement in the case, summarised the factors the court takes into account in relocation cases.

Put in simple terms, these are the factors:

  • The facts of each case are unique. Those facts must be carefully and delicately analysed.
  • No single factor decides where a child will live.
  • If there is a conflict between the welfare or best interests of the child and the legitimate interests and desires of the parents, priority must be given to the child’s welfare and rights. However, the latter cannot be viewed in isolation, separate from the circumstances of the parent with whom the child resides.
  • Adults have a right to decide for themselves where they will live. However, ultimately the welfare or best interests of the child are paramount, and not, the wishes and interests of the parents.
  • A more relaxed approach should be adopted to relocation within Australia than relocation overseas.
  • If a parent seeks to change arrangements affecting the residence of, or access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of or in the best interests of the child.

What evidence is relevant in relocation cases?

The kind of evidence that a court considers in relocation cases include:

  • The age/s of the child or children.
  • The wishes of the child/ren.
  • The kind of relationship a child/children have with each parent.
  • The reason/s why a parent wants to move: this could, for example, be to be with a new partner or to take up a job offer.
  • The mental health of the parent who wants to move.
  • The financial circumstances of the parent who wants to move.

Other Cases

Other useful cases that deal with relocation include:

  • SMG v RAM [1999] FamCA 1845
  • In Marriage of Paskandy [1999] FamCA 1889
  • U v U (2002) 191 ALR 289
  • Pitkin and Hendry (2008) Fam CA 186
  • McCall v Clark [2009] FamCAFC 92
  • Jurchenko v Foster [2014] FamCAFC 127
  • Blanding v Blanding (2016) 55 FLR 218
  • Hendy & Penningh [2018 FamCAFC 257
  • Babcock & Waddell [2019] FamCAFC 129
  • Franklyn & Franklyn [2019] FamCAFC 256
  • Asher & Wilkinson [2020] FamCAFC 44

 How difficult is it to get or oppose relocation orders?

Whether you are the parent asking for relocation or the parent opposing relocation, your case must be meticulously prepared and skilfully presented to convince the court that the order you seek is in the best interests of your child or children.

At Opal Legal, we are experienced in dealing with relocation cases. If you are considering relocation or reasonably suspect that your ex-partner is about to relocate, contact our principal – Namrata Singh on (02) 8798 0457 or namrata@opallegal.com.au for a free initial consultation.

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