Relocation and Custody Rights: What Happens Next?

relocation custody cases

What Is Child Relocation?

Child relocation in family law refers to a situation where one parent wishes to move to a different location with their child, significantly impacting the child’s access to the other parent.

This move can be within the same country or to a different country and often arises after separation or divorce.

The key issue in child relocation cases is determining what is in the best interests of the child.

This involves considering the child’s emotional, social, and educational needs, the reasons for the proposed relocation, and the impact it will have on the child’s relationship with both parents.

Relocation cases are often complex, involving legal and emotional considerations, and typically require legal approval or an agreement between the parents.

In cases where parents cannot agree, a court may need to intervene to decide whether to permit the relocation, always prioritising the child’s welfare and well-being.

When one parent wants to move with their child or children to a different place, either inside Australia or abroad, relocation custody is a complicated and delicate subject.

Legal issues, parental rights, and the child’s best interests must all be considered during the process. This article will give a general summary of Australia’s relocation custody rules, outlining the crucial elements and judicial framework that govern such instances.

Understanding Relocation Custody Laws in Australia

Australia’s Family Law Act of 1975 (Cth) has jurisdiction over relocation custody proceedings.

The act emphasises how crucial it is to consider the child’s best interests when deciding whether a parent can move away with their child.

The key priority is to preserve the child’s connection to both parents while taking into account their respective ages, their wishes (if they are old enough to express them), and the effects of the proposed move on their wellness.

International Relocation: Defined

International relocation in the context of family law is when a parent wishes to move to a different country with their child, following a separation or divorce.

This move significantly affects the child’s access to the non-relocating parent and involves crossing international borders.

It introduces unique challenges due to differing legal jurisdictions, the complexities of international law, and the potential for vastly different cultural and social environments for the child.

In these cases, the primary concern is the child’s best interests, which include their emotional, educational, social, and cultural needs.

The decision-making process often involves assessing the reasons for the relocation, such as employment opportunities, family support, or improved living conditions, against the impact on the child’s relationship with the other parent.

The Hague Convention on the Civil Aspects of International Child Abduction may also come into play, aiming to protect children from international abduction by a parent.

Courts or legal systems in different countries often need to collaborate to resolve these situations, making international relocation cases among the most complex in family law.

Applying for Relocation: Legal Process

To relocate with a child, the parent seeking to move must apply to the court for permission. The court will then assess the proposed relocation, considering various factors, including:

Best Interests of the Child: The court will prioritise the child’s best interests, considering factors such as their relationship with both parents, their stability, educational opportunities, and social connections.

Reason for Relocation: The parent seeking to relocate must provide a valid reason, such as employment, education, or a genuine change in circumstances, which demonstrates that the move is in the best interests of the child.

Impact on Relationships: The court will assess the potential impact on the child’s relationship with the non-relocating parent, including the quality and frequency of contact, and whether suitable arrangements can be made to maintain ongoing meaningful relationships.

Practical Considerations: The court will evaluate practical elements, such as the distance of the proposed move, the child’s age and maturity, travel arrangements, and potential disruption to their schooling or other activities.

What Happens When a Parent Relocates the Child Without Permission From Court

When a parent relocates with a child without obtaining permission from the court, it is generally considered a breach of custody arrangements and can have legal consequences.

The specific consequences can vary depending on the circumstances and child custody laws of the jurisdiction, including the state or territory within Australia.

Here are some possible outcomes when a parent relocates with a child without court permission:

Breach of Court Orders: If there are existing court orders in place regarding custody or parenting arrangements, the parent who relocates without permission is likely to be in breach of those orders. The other parent can take legal action and file a contravention application with the court.

Court Intervention: The court can intervene to address the breach and enforce compliance with the existing custody orders. The court may require the relocating parent to return the child to their original residence or take other actions to restore the custody arrangements.

Modification of Custody Orders: In response to the unauthorised relocation, the court may review and modify the custody orders to establish new arrangements that are in the best interests of the child. The court will consider factors such as the reason for the relocation, the child’s well-being, and the impact on the relationship with the non-relocating parent.

Legal Consequences: The court can impose penalties on the parent who relocated without permission. These penalties can include fines, community service, or even imprisonment, although such severe consequences are usually reserved for cases involving intentional or repeated breaches.

Parenting Plan or Mediation: In some instances, the court may encourage the parents to engage in mediation or negotiation to reach a new parenting plan that takes the relocation into account. This can involve discussions on visitation rights, travel arrangements, and maintaining a relationship with the non-relocating parent.

It is important to note that each case is unique, and outcomes can differ based on various factors. Seeking legal advice is crucial if a parent has relocated without permission, as an experienced custody lawyer can guide the parent through the legal process and advocate for their rights and the best interests of the child.

It is always recommended to comply with the custody orders and seek proper court approval before relocating with a child to ensure a smooth and lawful transition while safeguarding the child’s wellbeing and the relationship with both parents.

Relocation Custody Cases: Case Examples

The courts have dealt with a range of relocation custody cases, each unique in its circumstances. Here are a few examples:

Timms & Payton [2015]

In a custody dispute, Mr Timms opposed Ms Payton’s plan to move two hours away with their 11-year-old daughter. The child strongly objected to the move, as she had always lived in her current area and wanted to continue attending her current school.

She also aspired to attend a local performing arts high school, which was unavailable in the new location. The independent children’s lawyer recommended that the child should stay with Mr Timms, citing it as being in her best interests.

Although acknowledging Ms Payton’s selfish attitude towards the move, the court ruled in her favour due to her being the primary caregiver for most of the child’s life.

Mr Timms’ proposed caregiving arrangement, relying on an 18-year-old relative and a neighbour, was deemed problematic.

The court emphasised that Mr Timms would still have regular contact with the child, and the child’s opinions would gain more weight as she grew older.

MRR v GR [2010]

The case involved a mother who wanted to relocate with her child from Mt Isa to Sydney, while the father planned to remain in Mt Isa. Initially, the court denied the mother’s application, determining that it was in the child’s best interests to remain in Mt Isa with shared parental responsibility.

However, the mother appealed the decision, leading to a further examination of the family’s circumstances.

In Mt Isa, the mother was living in a caravan park with limited job opportunities, thus affecting her mental health negatively. Relocating to Sydney would provide her with better job prospects and family support, ultimately improving the overall situation for both the mother and the child. The High Court granted the mother the right to relocate the child.

This decision was not based solely on the mother’s best interests but rather on the understanding that enhancing the mother’s circumstances would ultimately benefit the child’s best interests as well.

Barton & Haselwood [2021]

In the case of Barton & Haselwood, Ms Barton sought permission to relocate with the children to a city in Queensland to be with her partner, but the father opposed the move. The court considered evidence from a family consultant, which highlighted the children’s strong opposition to the relocation.

Ms Barton and her partner were involved in an open relationship, which raised concerns about their stability and judgment. Despite Ms Barton’s claims of domestic violence, there was limited supporting evidence.

The court denied Ms Barton’s request to relocate and maintained the current arrangement of equal shared parental responsibility, with the children primarily living with the father.

Both parents were ordered to attend a parenting course and establish agreed arrangements for communication, changeovers, special occasions, and enrolling one child in an ACT high school.

Cowley & Mendoza

In the case of Cowley and Mendoza decided in the Family Court of Australia in July 2010, a mother of two young children aged 3 and 5 was refused permission to take those children back to her homeland of Brazil. 

The father was an Australian and he had met the mother whilst on a back-packing holiday. 

They married in Brazil in 2003 and in the subsequent years spent some time in Brazil and Australia. In 2008, they decided to make Australia their home and to educate the children in Australia.

Unfortunately, the marriage broke down in March 2009 and they separated under the one roof.  In this case, both parents played a very active role in the care and upbringing of the children. 

The mother’s proposal was that the children should be permitted to relocate to Brazil as she considered that to be the best option.  The father wished the children, and the mother- if she decided to stay in Australia, to remain living in Australia as the best option- he, himself not being willing to relocate to Brazil.  He proposed that the parenting be shared in Australia.

The Judge made the following findings:

In my view, the mother’s choices have neither more, nor less, “legitimacy” than the father’s choices. The mother – understandably and legitimately – wishes to live in Brazil. Brazil is a country where her family lives and with which she identifies. She considers it a preferable place to live to Australia. It is understandable that a caring and loving mother would want her children to live with her in that country. Equally, the father –understandably and legitimately – wishes to live in Australia. It is the country of his birth. He likes living here. He considers it a preferable place to live to Brazil. It is understandable that a caring and loving father would want to have his children living with him in Australia.

…. The issue is, “Where [do] the best interests of [these two young children] lie and what arrangements will best serve those interests. To that statement it needs now be added “if (as here) the parents are to share equally parental responsibility, is an equal time order (or substantial and significant time order) ‘reasonably practicable’”.

The findings which, all parties agree, are uncontroversial in this case and which are enumerated in Exhibit 1 are:

1. The children are each very young and are too young to express “views”;

2. Additionally, the children are too young to appreciate the effect of separation from either of their parents;

3. The children are closely bonded and attached to each of their parents;

4. Whilst allegations are made by each parent about alleged parenting deficiencies in the other, each parent is, in fact a “good enough parent” as that expression is used by Ms E in her report (that is, in the sense coined by the British paediatrician, psychiatrist and psychoanalyst Donald Winnicott and used thereafter in the psychological literature);

5. In that respect, Ms E is right when she says (para 49) that, while both parents allege limitations in the other’s parenting, if what each alleges about the other is true, it does not necessarily strengthen their respective individual arguments. That is emphasised by (among other things) reference to the respective proposals for the involvement of the other parent in each parent’s proposals;

6. Apart from a period of about 6 months two years ago, when the children were about 3 and 18 months old, they have lived with both of their parents, including during the almost 12 months that the parties have been separated under the one roof;

7. Any proposal, including a co-parenting arrangement in Australia, will involve a change for the children to what they have erstwhile experienced;

8. A proposal that sees their parents separated with one living in Australia and one living in Brazil will involve a very significant change for them;

9. If the children stay with one parent and the other parent does not move to Brazil or stay in Australia as the case may be, the children will be separated from an important loved person in their lives and the children are likely to suffer at least some emotional detriment as a result. In particular, such a result, to use Ms E’s words, “can be destabilising, thus, undermining their capacity to form secure attachments to either of their parents and form healthy relationships as adults. Such an arrangement can cause children to become anxious and stressed which can impact upon their developmental progress”;

10. In the event of that separation “whilst regular communication would assist in compensating for this loss [of both parents regularly in their lives], at this age it is not a satisfactory replacement/alternative to regular experiential time” (Ms E par 58);

11. In the event of that separation, the amount of “experiential time” will, by reason of the parties’ respective proposals, and practical considerations of cost and distance, be effectively reduced to a couple of times per year;

12. A relationship bounded by that “experiential time” [again adopting Ms E’s words] “is not good enough, particularly at [D] and [R’s] age”;

13. Each parent is likely to react with distress and disappointment to a decision not by their desired outcome.

The Judge was ultimately of the view that… To separate the children now from one of their parents by virtue of relocating to another country would essentially make the other parent an absent figure in their lives, a virtual stranger. Whilst regular communication would assist in compensating for this loss, at this age, it is not a satisfactory replacement/alternative to regular experiential time.   ……Relocation to another country, in my opinion, essentially rules … out [regular time between children and the ‘absent’ parent]. It is simply not practical. The children’s time with the other parent is generally reduced to a couple of weeks, once or twice a year. This is not good enough, particularly at [these children’s] ages.

The mother was denied permission to relocate the children overseas to Brazil and Final Orders were made for equal shared parental responsibility and for the children to spend part of each week with either parent in Australia.

Relocation and the Child’s Best Interests

In Australia, relocation custody disputes necessitate carefully weighing the child’s best interests and preserving the child’s connections to both parents.

A legal framework for evaluating these situations is provided by the Family Law Act, which emphasises the value of stability, well-being, and the child’s continued relationship with their parents.

To negotiate the complexity and achieve the best result for your child, it is essential to seek legal counsel if you are considering a relocation custody lawsuit.

Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.

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  1. Pingback: What Type of Custody Is Best for a Child | Melbourne Family Lawyers

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