AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
Relocation cases are some of the most complex par - enting cases determined by the Court. It is important to bear in mind that the Court does have the power to make orders not sought by either of the parties when determining such applications. 2.3.2 Wishes and Feelings of the Child In parenting cases, a child’s “best interests” are placed at the centre of decision-making, and there are two key methods by which a child’s views can be brought before the Court. • Through family or child impact reports – these reports are prepared by an independent third party, usually an experienced social worker or psycholo - gist, who examines the dynamics of a co-parenting relationship and makes recommendations intended to promote the child’s best interests. These inde - pendent reports will be sought in the vast majority of contested relocation cases and are a helpful piece of evidence for the Court or for the parties to consider. • Through the appointment of an Independent Children’s Lawyer (ICL) – an ICL will generally be appointed in cases involving an international relo - cation. The role of an ICL is to represent a child’s best interests and provide a perspective that is independent of the parties in relation to parenting arrangements. Subject to some limited exceptions, ICLs are now required to meet with the child whose interests they are appointed to represent and give the child an opportunity to express any views on matters relating to the proceedings. One of the six core considerations in relation to what is in the best interests of a child is “any views expressed by the child”. Therefore, once a child’s views are obtained, the Court will consider the weight to be given to such views as part of the broader inquiry as to what is in the best interests of the child. This will largely depend on the age and maturity of the child. 2.3.3 Age/Maturity of the Child Although the Court does consider “any views expressed by the child”, it is not bound by those views or wishes.
The Court will still consider the developmental, psy - chological, emotional and cultural needs of the child. Although a child’s views are relevant, factors such as a child’s age, maturity, development and level of insight and understanding will affect how much weight a court will likely give to a child’s views. By way of example, a court may give significant weight to the views of a mature teenager who is consistently expressing a strong opinion about relocation. However, the views of a young child of a child who is determined to be experiencing strong influence or alignment with a par - ticular party are unlikely to be given significant weight. 2.3.4 Importance of Keeping Children Together The Court places a significant priority on keeping chil - dren together as far as possible and preserving sibling relationships. The Court must have regard to the benefit of the child being able to have a relationship with other people who are significant to the child, where it is safe to do so. These relationships extend to parents, siblings and other extended family members/people of signifi - cance to that child. Although each factor has equal weighting, the Court will make parenting orders for children to live together where such arrangements are in the child’s best interests. 2.3.5 Loss of Contact Loss of contact with a left-behind parent is a con - sideration for the Court when determining whether a relocation is in a child’s best interests. This is because the Court must have regard to the benefit of a child having a relationship with both parents, where it is safe to do so. The recent amendments, however, have removed the focus on preserving a meaningful relationship as a primary consideration when assessing the bests inter - ests of the child. The effect of this change remains unknown in terms of how it will be implemented. Some commentators have opined that the de-prioriti - sation of this factor (and the effect of no contact with the left-behind parent) likely means that there will be more orders in favour of relocation in cases where family violence is a significant factor.
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