AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
tion to the Court, seeking permission to relocate the child overseas. If the child was relocated to another country without such an Order, an application could be brought for the return of the child to Australia under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Hague Convention”). 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation In determining relocation cases, the Court must have regard to what is in the child’s best interests by con - sidering the factors set out in Section 60CC of the Family Law Act (see 1.1 Parental Responsibility ) and by carefully considering the proposals of each of the parties. Whilst the child’s best interests remain the paramount consideration for the Court, they are not the only consideration. Relocation cases are not a separate category of par - enting cases, and the Court must not treat relocation as a “discrete issue”. The Court is also not confined to the proposals of the parties but is required to con - sider all possible options when a parent is seeking to relocate with a child. It is well-settled law in Australia that a parent seeking to relocate the residence of a child is not required to demonstrate “compelling reasons” for the proposed relocation. However, if a parent is seeking to relocate, it is important to establish a link between the parent’s wish to relocate and the welfare of the child. To do this, the proposal to the Court must be detailed, clear and specific, and not speculative. The evidence must support a finding that an improvement in that party’s situation, by relocating, will impact positively on the child. Since changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent is considered a major long- term decision within the definition of parental respon - sibility, outcomes of relocation applications may be difficult to predict pending decisions made by the Court.
Applying existing case law, and noting the few cases published since the amendments, the following steps will be undertaken by the Court in determining reloca - tion applications: • identify and consider the competing proposals of the parents; • identify the key issues in dispute; • consider the Section 60CC factors in determining what is in the child’s best interests; and • assess the parties’ competing proposals, including the advantages, disadvantages and practicality of the proposals, in deciding where the child should live and what orders are in the best interests of the child. By following this process, the Court is then able to determine whether or not the child can relocate. Neither party bears an onus to establish a proposed change or continuation of the existing arrangement, and a parent’s right to freedom of movement must defer to the child’s best interests. The Court may also consider the following matters when determining relocation cases. • Was there an equal time arrangement or a signifi - cant and substantial time arrangement in place prior to the proposed relocation? • Is there a “fragile or tenuous” attachment to the non-relocating parent? • Is the relocating parent “idealistic” in relation to what might be gained from relocating, and do they have the resources or ability to “turn the vision into a reality?” • Does the relocating parent have established sup - port in the proposed new location? • Does the relocating parent have mental health or substance abuse issues? • Is the relocating parent realistically able to fund the planned contact visits with the non-relocating par - ent, as proposed? • Has the relocating parent been supportive of the relationship between the child and other parent in the past? • Is there a history of extensive conflict between the parents?
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