AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Each relocation case must be determined on its own facts. Generally, however, the Court does appear to be more sympathetic in relocation applications involving: • family violence; • limited family support or social structures, which may impact the relocating parent’s mental health; • limited employment opportunities, or financial sup - port, for the relocating parent; and • health issues for the relocating parent or the child, which are negatively impacted by their current residence. The Court will tend to avoid (as far as possible) any impingement on the freedom of movement of a par - ent, particularly in circumstances where that parent is exposed to family violence or is the primary carer for a child. 2.3.7 Grounds for Opposition to Relocation Although the Court is no longer required to consider (as a primary consideration) the benefit to a child in having a “meaningful relationship” with both parents, this may still be taken into account by the Court as “anything else that is relevant to the particular circum - stances to the child”. The Court may therefore be sympathetic to arguments that a child’s relationship with the non-applicant par - ent may be lost and/or significantly diminished, par - ticularly in the following circumstances: • if the child is very young and does not have an established relationship with the non-applicant parent; • if neither of the parents are able to facilitate the child’s travel to spend time with the non-applicant parent; or • if there is any concern that the parent relocating will not support the child’s relationship with the non-applicant parent. 2.3.8 Costs of an Application for Relocation The likely cost of a relocation application varies depending on what issues are in dispute, how com -
plex those issues are and what evidence is required to determine the issues. Relocation cases are the most highly contested par - enting matters, with little room for compromise. As a large proportion of such applications proceed to a final hearing, the cost of legal representation and expert evidence can be significant. If a party does not have means to fund legal representation and the case is considered to have merit, that party may qualify for publicly funded legal assistance, although the avail - ability of such legal representation is limited to those who meet very specific criteria. The following applies in addition to the costs of legal representation associated with the final hearing. • Parties are also required to engage in alternative dispute resolution prior to commencing proceed - ings (unless exceptional circumstances exist) and generally again during the course of litigation. The cost of private mediation alone can vary depend - ing on the experience of the mediator. There are a number of government-subsidised mediation services and Court-funded dispute resolutions that can reduce the costs associated with this process, although they tend to have a longer waiting list. • There are costs set by the Court associated with initiating parenting proceedings, including filing fees, daily hearing fees and setting down fees for hearings. • The Court will generally appoint an expert to evalu - ate the parties’ respective proposals and provide an objective analysis of the potential impact of the relocation on the child’s well-being and relation - ships with both parents. An expert appointed by either the Court or the parties jointly will interview both of the parents and meet with the child. A report will then be prepared by the expert, setting out their observations of the child and the par - ents, and making recommendations to the Court. Although the Court does not have to accept the recommendations of the expert, the report and its recommendations are a significant piece of evi - dence taken into account in determining what is best for the child, including whether to allow the relocation application. The costs of a private single expert can vary depending on the experience and
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