How does the Family Court determine if I can move away with my child?

The child’s best interests

Cases in which the Family Court has to determine whether a parent can move away with a child are referred to as ‘relocation cases’.  However, there is no specific class of case or any law which specifically deals with relocation issues.

Like all parenting orders, the paramount consideration for the Family Court in considering a parent’s application to relocate with a child is the child’s best interest in all the circumstances.

In determining same, the Family Court must have reference to the principles and objects of the Family Law Act 1975 (Cth) (and/or Family Court Act 1997 (WA) in Western Australia) and the mandatory consideration of what is in a child’s best interests.

Accordingly, the determination of whether a party can relocate with a child is not a case of the Family Court determining that the party wishing to leave has to show compelling reason for doing so.

What does case law say?

In the case of Malcolm & Monroe and Anor (2011), the Court noted the following:

“We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259–260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.” (Emphasis added)

On that basis, the Family Court will look to the parties’ competing proposals for care, but will ultimately make an objective determination as to which proposal better accommodates the child’s best interests in all the circumstances.

Not sure if you can move away with your child?

Should you require further assistance in relation to a relocation application, we recommend that you seek legal advice from an experienced Family Lawyer at Culshaw Miller Lawyers.