Child Relocation and Parenting Orders: Best Interests and Freedom of Movement

Child Relocation and Parenting Orders

In most relocation matters a parent will seek to move to a location that would make it difficult for the child to spend time with the other parent. 

Wherever the child lives the Court will endeavour to ensure that the child should spend reasonable time with the other parent.

Consideration of Best Interests of the Child

The Court must consider the current, and prospective arrangements for the child and whether they would be in the child’s best interests.

Competing with this concept is the separation of the child from his primary carer. Where a child “has been in the primary care of a parent (normally the mother) since his birth, that he has a meaningful relationship with that parent, and that it is in his best interests for that relationship to continue”

After finding that an order for equal shared parental responsibility was appropriate, (i.e., that the parents have an equal say in the major aspects of a child’s life)  the Court must turn its attention to the question of the parents having equal time with a child and if that was not appropriate because of distance as in most relocation matters then what time would be in the child’s best interests.

The task before the Court is to determine what parenting orders were in the child’s best interests. It is not to determine where the parent was “permitted” to live.

To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the Court. It is probably only in the circumstance of the significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.

Exploring Alternatives to Restricting Freedom of Movement

Alternatives to restricting freedom of movement by one parent should be explored by the Court. An order restricting the freedom of movement of the custodial parent should be made only if the welfare of the child clearly indicates that the other parent should have, instead of regular weekly access, rather less frequent but longer periods of access.

As children grow older there can be advantages in the latter form of access. Where the children have been in regular contact with the other parent, it is desirable in the interests of the children that they maintain their relationship with such parent.

However, when alternatives are considered, there is no preponderance in favor of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access, e.g. 3 or 4 visits each year and for longer periods of time during the children’s school vacations.

The Family Court is obliged to give careful consideration to the proposed arrangements of the parties … But the Court is not bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.

 Commentary on 68F(2)Wishes of children 

68F(2) [What court must consider] The court must consider: 

1. any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
2. the nature of the relationship of the child with each of the child’s parents and with other persons; 
3. the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: 
   1. either of his or her parents; or 
   2. any other child, or other person, with whom he or she has been living;
4. the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; 
5. the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs; 
6. the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
7. the need to protect the child from physical or psychological harm caused, or that may be caused, by: 
   1. being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or 
   2. being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person; 
8. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; 
9. any family violence involving the child or a member of the child’s family;
10. any family violence order that applies to the child or a member of the child’s family; 
11. whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; 
12. any other fact or circumstance that the court thinks is relevant.

It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. 

Importantly, a party’s “fall-back” or “back-up” position is to be considered only if his or her primary proposal is not accepted and is not to be treated as if it was a primary proposal.

Need Legal Help?

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You may also like to learn more about:

• RELOCATION. Mother and Child to Relocate Overseas.
• Can I Take My Child Overseas Without Telling My Partner?
• Parenting Orders for Children with Special Needs.
• Special Needs Parenting Orders.