Separation can be an extremely challenging time for parties, particularly when children are involved and one party wishes to go interstate or overseas to live with the child.  This becomes an issue if both parties do not consent to the relocation of the child.

A separated party, seeking to relocate with their child either interstate or internationally, must make an Application to the Federal Circuit and Family Court of Australia to obtain Final Orders permitting the relocation.

In Australia, relocation cases are to be determined in the same manner as all parenting cases, namely by considering the child’s best interests as the paramount interest. This statutory framework is set out in the S 60CA Family Law Act 1975 (Cth). It recognises the importance of maintaining meaningful relationships with both parents, and other factors regarding the child’s welfare which the Court must consider.

The matter of Anderson & Salinos [2022] FedCFamC1F 976 is a recent Australian authority, outlining the Family Court’s approach to dealing with orders for relocation where parties are separated and have children, and affirming the principles of the High Court in U v U [2002] HCA 36.

Furthermore, the High Court Authority of AIF v AMS [1999] HCA 26 establishes that a party seeking relocation is not required to provide “compelling reasons” for the desired relocation. This decision acknowledges the fundamental right of freedom of movement and grants individuals the autonomy to choose their place of residence. However, it is important to note that in the case of U v U, the Court clarified that while freedom of movement is a constitutional right in Australia, the child’s best interests are of paramount importance.

On 13 December 2022, Williams J of the Federal Circuit and Family Court of Australia (Division 1) made parenting orders in proceedings between Ms Anderson (“the mother”) and Ms Salinos (“the father”), concerning their child, X (“the child”) who was born in 2015.

The mother sought the Court’s permission to relocate her child to New Zealand. The mother was born in New Zealand and her maternal grandmother, and two sisters reside there. Four days prior to the trial, the mother filed an Amended Response and further affidavit, seeking to relocate the child to City B, in the event relocation to New Zealand was denied.

When determining whether relocation would serve the child’s best interests, the Court’s primary considerations were:

• Whether the child would benefit from having a meaningful relationship with both parents; and
• The need to protect the child from physical or psychological harm.

The Court also considered:

• Any views expressed by the child; and
• The nature and quality of the child’s relationship with each parent and other persons (e.g., grandparents); and
• The level of involvement and participation of each parent in the child’s life; and
• The ability of each parent to support the child; and
• The potential impact of changes in the child’s circumstances, including separation from either parent; and
• The practical challenges and costs associated of a child’s visitation and communication with a parent, and how it may affect their ability to maintain regular contact with both parents; and
• The capacity of each parent to meet the child’s needs; and
• The parental attitude and demonstrated sense of responsibility towards the child; and
• Any history of family violence involving the child or any member of the child’s family.

Taking into account the aforementioned factors, the Court held that allowing the mother to relocate the child to New Zealand or City B would not serve the child’s best interests. Instead, the Court determined that granting equal shared parental responsibility would be the most suitable arrangement for the child.

The Court reached this decision on the basis that relocating would deprive the child of regular and consistent time with the father as he would be unable to meet the cost of regular travel overseas to visit the child. The Court also held that the proposed relocation orders prioritised the mother’s interests over those of the child.

Nicholes Family Lawyers specialise in parental relocation matters including children, as well as in opposing relocation attempts by the other party, whether within Australia or internationally. To reach out, please contact our office at reception@nicholeslaw.com.au or by telephone at (03) 9670 4122.