International Relocation: When Does The Family Court Allow A Parent To Relocate Overseas With Their Children?

A parent cannot relocate to another country with the children of the relationship without either the other parent’s consent or an order of the Court permitting him or her to do so.

Relocation cases are complex, highly emotional and have a significant impact on all parties involved. Before embarking on litigation, a parent seeking to relocate will seek advice about whether the Court is likely to make an order allowing him/her to relocate.

There is no specific provision in the Family Law Act 1975 (Cth) dealing with relocation cases. Such cases are determined under part VII of the Act which deals with children’s matters. The object of part VII is to ensure the best interests of the children are met and this must be applied by the Court in determining relocation matters.

On 1 August 2000 the Full Court of the Family Court delivered its reasons for judgment in A v A: Relocation Approach. The decision in A v A is authority for the principle that, in reaching a decision in cases where a party seeks to relocate with the child or children of the relationship:

1. The Court cannot proceed to determine the issues in a way which separates the issue of relocation from that of where a child lives and what is in the best interests of the child;
2. Compelling reasons for or against the relocation need not be shown;
3. The best interests of the child are to be evaluated, taking into account considerations that include the legitimate interests of both of the parents;
4. Neither the Applicant nor the Respondent bears an onus;
5. Treating the welfare or best interests of the child as the paramount consideration does not oblige a Court to order the legitimate interests and desires of the parents. If however there is a conflict between those considerations, priority must be accorded to the child’s welfare and rights;
6. If a parent seeks to change arrangements affecting where the child lives or when he or she spends time with a parent, that parent must demonstrate that the proposed new arrangement, even if it involves a relocation overseas, is in the best interests of the child.

There has been a substantive body of case law since the case of A v A in 2000 which has further developed the Court’s approach in relocation matters.

In 2006 the Family Law Amendment Shared Parental Responsibility Act was introduced. The first judgment about a proposed relocation after its introduction was the case of M and S (2007) FLC. Dessau J concluded that there was nothing in the new legislation which explicitly alters the previous approach to relocation except that there is now a legislative intent in favour of substantial involvement of both parties in the children’s lives.

The staff at Farrell Family Lawyers have successfully represented several clients who wished to relocate overseas with their children to countries including the United Kingdom, Northern Ireland and New Zealand. Please do not hesitate to contact one of our lawyers if you wish to have an obligation free discussion about international relocation on +61 3 8393 0144.