Relocating with a child? No such thing!

Relocating with a child? No such thing! Exclusive by Regular Contributor
Pamela Cominos – Lawyer

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Planning on relocating with a child?
No such thing! Exclusive

Pamela Cominos, Lawyer
for | 28 April 2012

It is not uncommon for parents who have separated
to want to move away…

Sometime a few hours away from the other parent, sometimes interstate and sometimes even overseas and nothing causes parents more grief than this scenario.

Often and unfortunately with separation and divorce comes a lower standard of living and income than was the case when couples pooled their financial resources. One party may also wish to move back closer to original family networks and support to assist with the new circumstances.

Under the Family Law Act 1975 (Cth) “FLA” there is no specific section that refers to relocation and as such the subject of relocation causes great difficulty for parents and legal practitioners.

Guidance on relocation matters can be found in the cases known as A v A: Relocation Approach (2000) FLC, AMS V AIF and AIF v AMS (1999) 199 CLR 160 and U and U (2002) FLC 93-112.

In summary the key principles arising from the above cases are as follows:

  1. That the issue of relocation is not a separate or distinct issues from that of what is in the best interests of the child and his/her living and spend time arrangements;
  2. A party seeking to relocate with the child, does not need to give compelling reasons, indeed compelling reasons for or against the relocation are not required;
  3. The court is not limited to the proposal of the parties, it must consider their proposals and it must give the parties an opportunity to consider and make submissions to any new proposal made by the court;
  4. There is no onus of proof, either on the party proposing the relocation or on the party opposing the relocation.
  5. The court should not overlook the possibility that the party opposing the relocation, might himself or herself relocate to the relevant place;
  6. The court cannot make orders preventing an adult party from relocation, it may only make orders preventing the relocation of the child;
  7. The child’s best interests continue to be the paramount consideration although not the sole consideration and the court can consider the legitimate interests and wants of the parents. However where these interests are competing, the child’s welfare and rights take priority.

The amendments to the Family Law Act in 2006, known as the Family Law Amendment (Shared Parental Responsibility) emphasises the importance of a child having the benefit of both their parents being involved in a meaningful way in their lives subject to protecting the child from family violence and/or being exposed to family violence.

The amendments also focus upon each parent fulfilling their duties and meeting their responsibilities, concerning the care, welfare and development of their child/ren.

In light of the above objectives, an application for relocation is not an easy application. Nevertheless an application for relocation as a parenting order does remain open to any parent who may wish to relocate. Success or otherwise, will depend on many factors and it is of course strongly suggested by the writer to obtain legal advice before one embarks on any application involving children and parenting arrangements.

Any parent seeking to relocate must at the very least provide the court with the benefits for the child of relocating and consider detailed arrangements/options for the child spending time if relocation is permitted, with the non-relocating parent, whether that be face to face, telephone, email, Skype. It is of course prudent to inform the court of the current parent arrangements and the strength or otherwise of the relationship between the child and the non-relocating parent.

Any person seeking to relocate with a child, is strongly advised to seek independent legal advice and the information provided in this article is of a general nature and cannot be applied to individual and specific circumstances.

28 April 2012

Pamela Cominos
Principal Family Lawyer – Cominos Lawyers

This article contains only general information, correct at the date of publication. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full Disclaimer here

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About Pamela Cominos

Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law.

Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
Pamela is passionate about being a lawyer and she is successful in assisting her clients in matters that involve complex parenting and property issues. Pamela is a skilled advocate and will represent you at Court with confidence and care. She is a pragmatic and compassionate solicitor who gives her undivided attention to your matter.
Pamela is committed to her family law practice and in particular women in domestic violence. She is on the legal aid Family Law Panel and is a referral solicitor for a number of Women’s Refuges in NSW.
You can read Pamela Cominos’ full profile here

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