Is your partner wanting to relocate for work or personal reasons? Are you worried about how this will affect the care arrangements involving your children? Or do you wish to relocate with the children?
Cases involving the proposed relocation of a child are often very complex. The Court deals with each case on its facts.
For another of our blogs dealing with relocation of children, see“Are you concerned about relocation of your child?”
The law generally
The court is required to follow a legislative pathway in any parenting matter, including in a case where a party wants to relocate children. Section 60CC of the Family Law Act 1975 (Cth) requires the court, in determining the best interests of the children, to consider matters set out in sections 60CC(2) and subsection (3) of the Family Law Act 1975(Cth).
The primary considerations in determining a child’s best interests are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm, with that latter factor carrying most weight.
In the recent Federal Circuit Court case of Snell & Dalziel  FCCA 878, that second factor was not an issue. In that case, the mother wanted to relocate from Alice Springs to Adelaide with her children.
There were 4 children of the relationship, namely [W], aged 17, [X] aged 15, [Y] aged 13 and [Z] aged 8.
The parties agreed there should be no order made about child [W] as he had already relocated and commenced tertiary studies at University in Adelaide and child [X] had commenced school in Adelaide and they were both living in Adelaide in the home of Mr [H], the mother’s partner.
The mother wished to relocate to Adelaide to live with Mr [H], with whom she had been in a long distance relationship for two and a half years.
At the time of the hearing [Z] was spending 3 nights a week with the father and half of school holidays. [Y] was spending about one night a week with the father.
Mr [H] had two children aged 8 and 10 in a shared care arrangement with his former partner. The mother submitted that she intended to purchase a house in Adelaide that would be suitable to accommodate the four children and Mr H’s two children.
The Court accepted that the mother had secured a job in Adelaide and that she was in a “serious and longstanding relationship” with Mr [H]. The children had a good relationship with Mr [H].
There was evidence in the family report provided to the Court that there was “some strain in the relationship between the father and some of the children.” [Y] told the family consultant that although he got along well with his father, they had grown apart to a degree. In his interview with the family consultant, [Z] stated that although he liked spending time with his father, he did not like his father’s accommodation which at times in the past had included living in a tent and a caravan. The family consultant held the firm view that [Z] wished to remain living with his siblings.
The family report showed that the children were most closely bonded to the mother; that the siblings had a close bond with each other and that [X], [Y] and [Z] wished to live together.
The father argued that the present arrangements should continue.
The father gave evidence that, reluctantly, he would relocate to Adelaide with his current partner, if necessary.
Court’s consideration and findings
The Court noted that the father was able to afford to travel to Adelaide to see the children.
The Court noted that it would be unusual to make an order that the mother continue to reside in Alice Springs if she wished to relocate as that would be inconsistent with her fundamental right to freedom of movement. The Court was also troubled by the fact that the father’s proposal would require the siblings to be separated.
The Court considered whether the children could maintain a meaningful relationship with the father if the mother were to relocate to Adelaide. The Court noted that the father had indicated he would relocate to Adelaide and, if he did so, then the Court stated that something akin to the current arrangements with [Y] and [Z] could continue. The Court determined that if the father were to remain in Alice Springs, although his relationship with the children would be affected, a meaningful relationship with them would still be possible.
The Court accepted that the children were emotionally closest to the mother. The Court noted that while the father was a committed and involved parent, he had a troubled relationship with the three eldest children.
The Court considered the likely effect of any relocation on the children. It noted that [W] and [X] would not be affected as they were already living in Adelaide. If the father did not relocate to Adelaide and remained living in Alice Springs, then the relationship with Y would be affected to some extent given he was spending regular time with his father albeit only one night a week. The court considered that the father’s relationship with [Z] would be significantly affected as he was currently spending three nights out of seven with the father.
However, the Court noted that the fact that a relationship is affected or changed does not mean that it is not a meaningful relationship. A meaningful relationship is a relationship having substance and value to a child in the given circumstances. The Court was satisfied that, if the mother did relocate to Adelaide, and the father did not move to Adelaide, then a meaningful relationship would still be possible.
The Court considered that [Z] continuing to live with his siblings was a matter of great benefit to Z and very possibly of equal or greater importance than seeing his father on a continued basis of three nights out of seven.
Having determined that the mother should be permitted to relocate with the children to Adelaide and that there should be an order for shared parental responsibility with the father, the court was obliged to consider under section 65DAA of the Family Law Act 1975 (Cth) whether the children spending equal time or substantial and significant time with the father was reasonably practicable. It was found not to be practicable in the circumstances of this case for the children to spend equal time with the father if he were to remain in Alice Springs. The court then considered whether equal time would be practicable if the father were to move to Adelaide. The father did not offer any evidence about what arrangements he would make to support this sort of arrangement and therefore the court found it was not practicable for the children to spend equal time with the father on either scenario.
The Court therefore made orders that:
- The children live with the mother.
- That the mother be permitted to relocate the residence of the children to Adelaide.
- That both parties have shared parental responsibility for [X], [Y] and [Z].
- That in the event that father continued to live in Alice Springs, the children spend time with the father at any times agreed by the parties and failing agreement, for one half of all school holiday periods with the parties to equally share the travel expenses.
The Court further ordered that should the father relocate to Adelaide and reside within reasonable proximity of the children that:
- [Z] spend time with the father 3 nights a week and for one half of school holidays; and
- [Y] spend time with the father according to his own wishes.
No orders as to time between the father and [W] and [X] were made.