Child Relocation

The law recognises “the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis”, however the rule is not absolute.[1]

A parent does not have the right to unilaterally change the location of the child on the basis that the child lives with that parent more than fifty per cent of the child’s time.[2]

The Court has no power to order a parent to live in a particular state, city, town or place over another.  The jurisdiction of the Court is limited to the place of residence of the child.

The approach to relocation cases are simple.  It is the same approach taken in any other parenting matter concerning the living arrangements for children.  The legislative pathway does not change.  The Court is not bound by the parties’ proposals.[3]

What is difficult is determining the case.  And as a result, making the arguments in support of either the relocating parent or the parent left behind.

It is a balance of the best interests of the child and the right to freedom of movement enshrined in the Constitution.[4]  Of course, the best interests of the child is the paramount consideration.[5]  But paramountcy does not equate to sole.[6]  It is only where the best interests of the child are at fundamental odds with the parent’s constitutional right to decide where to live when that right is subjugated.

Given the paramountcy principle, the true difficulty is balancing the competing factors relevant to determining the child’s best interests.  The benefits of the relocating parent must be held against the disadvantages to the child, which are usually represented by the adverse impact on the child’s relationship with the parent left behind.

Much of that difficulty stems from the fact that to take a child from the place where one of the parents lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop.[7]

It will often be that the same body of evidence in a relocation case may provide opposite but reasonable conclusions depending on the decision maker.[8]

Substantial rules of evidence do not apply in Part VII proceedings,[9] including the rule against hearsay,[10] the rule against opinion[11] and rules concerning documentary evidence.[12]  Section 69ZT does not, however, fetter the Court’s discretion on the weight to be attributed to evidence admissible by virtue of that section.[13]

The importance, and in some cases necessity, of expert evidence cannot be underestimated.

Admissibility of evidence does not guarantee any weight will be ascribed to it by the Court.  In Santariga & Farris [2020] FamCAFC 241 the primary judge placed substantial weight on and accepted the mother’s evidence of the likelihood she would be forced into receivership or bankruptcy should she have to relocate.  The Full Court held there was insufficient evidence to support the finding.[14]

A typical scenario in a relocation case is for one parent to propose the child live with them in one place but proffer alternate living arrangements in the event the Court “does not permit the relocation”.  The plethora of authority on this topic reminds us of a very important point of law: procedural fairness.  The Court must consider the proposals and arguments of the parties.  Where a fall-back position is submitted, the Court must first consider the primary proposal.  Sometimes only if that is rejected should the fall-back position be considered.  For example, in U v U [2002] HCA 36 Gaudron J said:[15]

Another aspect of the argument put with respect to the first ground of appeal, was that the trial judge should have first decided between the mother’s proposal that N reside with her in India and the husband’s counter-proposal that N live with him in Australia and, only if it was decided that, as between those proposals, N’s interests were better served by living with her father, should consideration have been given to his alternative proposal that N live with her mother in Australia.

There may well be cases where, because of the way the issues have been framed or the case conducted, procedural fairness requires that a particular proposal should be considered only if another is positively rejected. So, too, it may be that the issues are such that it is only necessary to consider a particular proposal if others are positively rejected…

Strategies may be developed on the proposition that a parent unwilling to relocate where the other is willing to stay can influence the Court’s decision against the flexible parent.  As a point of law, this should not be the case.  The unwillingness of a parent to move cannot be determinative of the parent’s capacity to move.  The Court is concerned with options, and not mere preferences.  Evidence must establish the parent’s incapacity to move.  In Deiter & Deiter [2011] FamCAFC 82 the Full Court held:[16]

We considered his Honour erred in accepting, as in any way determinative, the fact the father would be “unlikely” to move to Perth if his application was unsuccessful. As his Honour himself said … if the outcome was that the best interests of the children required them to remain in Perth, “the Father would have a significant decision to make”. It is therefore less than clear to us why, in the very next paragraph, his Honour appears to accept as determinative that the father was unlikely to move to Perth.

Hayne J said in U v U [2002] HCA 36:[17]

When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.

The need to consider proposals is a matter of procedural fairness.  A party is permitted to put alternate proposals to the Court contingent on the Court’s findings or otherwise.  Conflation of proposals, evidence and concession must be avoided.  In Heaton v Heaton [2012] FamcCAFC 139 the Full Court held:[18]

His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.

Reference to labels such as proposals and fall-back positions are unhelpful, exemplified by the preceding judgments.  Submitting a fall back position, or a conditional proposal, at the same time as the primary proposal is a matter of convenience and the Court ought not consider a party’s alternate position until it is necessary to do so.  This may be once the primary proposal has been considered and dismissed.[19]

It is common to hear of categories of “relocation cases”: local, intrastate, interstate, etc.  It is important to keep in mind that it is not distance per se which should be the determinative criteria but the consequences of the relocation.[20]  As Boland J eluded in Morgan & Miles [2007] FamCA 1230:[21]

… The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship.  Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered. 

It is trite law that a parent proposing or justifying a relocation need not demonstrate compelling reasons.[22]

The Full Court set out a list of relevant considerations in “relocation cases” in A v A: Relocation approach [2000] FamCA 751:[23]

The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

It is necessary for a court to evaluate each of the proposals advanced by the parties.

A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.”

The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.

The object and principles of s60B provide guidance to a court’s obligation to consider the matters in s68F(2) that arise in the context of the particular case.

It is to be expected that reasons for decision will display three stages of analysis and:

A court will identify the relevant competing proposals;

For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue.  Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.

On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

The process of evaluating the proposals must have regard to the following issues:

None of the parties bears an onus:

In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child.  That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

The importance of a party’s right to freedom of movement:

In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s92 of the Constitution, where applicable.

In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.  If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

Matters of weight should be explained:

In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

Interim relocation cases are particularly difficult to predict an outcome because of the inability to test controversial evidence, and as a result, a Court cannot make findings about disputed facts.[24]

In C & S [1998] FamCA 66 Warnick J (with whom Ellis and Lindenmeyer JJ agreed) discussed the issues confronting the relocation of children’s residences before the issues can be determined at trial:

In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the children or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.

In other words, you don’t put the cart before the horse.  To incontestably justify rejection of interim relocations on this premise is to fall into error.[25]

Morgan & Miles [2007] FamCA 1230 concerned the unilateral decision of a mother to relocate the child’s residence some 144 kilometres away prior to an interim hearing.  After reviewing the principles underpinning “relocation cases” and the 2006 amendments to the Family Law Act 1975 (Cth), Boland J emphasised the jurisprudence expounded by Warnick J in C & S:[26]

Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation.  It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

His Honour then explicated the requirements of a trial judge considering an interim relocation:[27]

Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

Interestingly, in Morgan & Miles Boland J dismissed the appeal because the trial judge addressed each of the legislative requirements in that he:[28]

set out the general terms of the parties’ competing proposals for final orders;

identified  contested factual issues which he could not determine on an interim basis including how much time or how often the father saw T after school; and

had regard to matters relevant to the children’s best interests under s 60CC including:

their primary care by the mother pre and post separation;

the fact that the children regularly each Thursday stayed with the paternal grandmother, and saw the father that evening, and that the elder child had seen the father after school for some period;

the ages of the children and the level of time spent with the father and paternal family which occurred prior to the mother’s unilateral move;

the provisions of the parenting agreement including the collection of the children from school and pre-school;

the effect of the unilateral move by the mother after the father’s application was filed;

Gave most weight to matters relevant to the primary considerations namely the maintenance of a meaningful relationship between the children and the father, and concluded on an interim basis, that the mother should return the children to the small town, subject to provision of suitable housing.

So, the conclusion is simple and complex: it is simply about the best interests of the child, which can be overwhelmingly complicated to determine.

David Marcolin

Solicitor

[1] A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ) at [75] adopting the statement of Kirby J in AMS v AIF [1999] HCA 26 at [146].

[2] Morgan & Miles [2007] FamCA 1230 at [55].

[3] U v U [2002] HCA 36 at [80] (Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed).

[4] Commonwealth of Australia Constitution Act 1900 s 92; A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ) at [92] adopting the statement of Kirby J in AMS v AIF [1999] HCA 26 at [191].

[5] Family Law Act 1975 (Cth) s 60CA.

[6] A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ) at [64]; AMS v AIF [1999] HCA 26 per Kirby J at [193]; U v U [2002] HCA 36 per Kirby J at [159].

[7] U v U [2002] HCA 36 at [170] per Hayne J.

[8] CDJ v VAJ [1998] HCA 67 (McHugh, Gummow and Callinan JJ) at [140].

[9] Family Law Act 1975 (Cth), s 69ZT(1).

[10] Evidence Act 1995 (Cth), Part 3.2.

[11] Evidence Act 1995 (Cth), Part 3.3.

[12] Evidence Act 1995 (Cth), Part 2.2.

[13] The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying: Family Law Act 1975 (Cth), s 69ZT(2).

[14] Santariga & Farris [2020] FamCAFC 241 at [68].

[15] U v U [2002] HCA 36 at [33] and [34].

[16] Deiter & Deiter [2011] FamCAFC 82 at [97] (Finn, Thackray & Strickland JJ).

[17] U v U [2002] HCA 36 at [175].

[18] Heaton v Heaton [2012] FamcCAFC 139 at [32] (Coleman, Ainslie-Wallace & Ryan JJ).

[19] U v U [2002] HCA 36 at [175] (Gaudron J).

[20] Morgan & Miles [2007] FamCA 1230 at [91].

[21] Morgan & Miles [2007] FamCA 1230 at [91].

[22] AMS v AIF [1999] HCA 26 at [47] (Gleeson CJ, McHugh and Gummow JJ), [92] (Gaudron J), [191] and [192] (Kirby J), and [209] (Hayne J); see also A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ).

[23] A v A: Relocation approach [2000] FamCA 751 at [108] (Nicholson CJ, Ellis and Coleman JJ).

[24] Goode & Goode [2006] FamCA 1346 at [73] and [74] (Bryant CJ, Finn and Boland JJ); Edgar & Strofield [2016] FamCAFC 93 at [15].

[25] Browne v Keith [2015] FamCAFC 143 at [29].

[26] Morgan & Miles [2007] FamCA 1230 at [55].

[27] Morgan & Miles [2007] FamCA 1230 at [79].

[28] Morgan & Miles [2007] FamCA 1230 at [102].