AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
The court is not confined to the proposals put forward by the parties and may explore a range of outcomes that may be in the best interests of the child, provided the parties have been afforded procedural fairness. A parent wishing to relocate is not required to estab - lish compelling reasons in support of their applica - tion. They will, however, need to present a clear and detailed proposal to the court, setting out how the relocation will benefit the child, particularly where the proposal presents a significant departure from the existing arrangements. The court will explore the alternatives to restricting the freedom of movement of a parent, especially where there is a proposal to impose an obligation on a pri - mary caregiver to care for the child in a place that is not of their choosing. Factors that will have a significant bearing upon an application to relocate include: • the arrangements already in place for the child to spend time with the other parent, whether those arrangements are working and whether the par - ent seeking to relocate has been supportive of the child’s relationship with the other parent; • the child’s relationship with the non-relocating par - ent; • the support networks available in the new location; • any safety considerations, including any history of family violence; • the impact upon the parent seeking to relocate (and by implication their parenting) in terms of their mental health and wellbeing, and any financial impact of being able to relocate and/or having to remain in Australia; • whether the parents (and particularly the parent seeking to relocate) will be able to fund future over - seas travel so that the child can continue to spend time with the non-relocating parent; and • whether any orders made will be recognised and/ or could be registered and enforced in the other country. 2.3.2 Wishes and Feelings of the Child A child’s wishes and feelings will be a relevant but not determining factor; they are one of several factors
that must be considered in the overall assessment of a child’s best interests. In most relocation cases, the court will appoint an Independent Children’s Lawyer (ICL), who will make recommendations to the court about which orders are in the child’s best interests, based on the evidence. The ICL will meet with the child (if they are school age), explain the proceedings in an age-appropriate way and give the child an opportunity to express their wishes. Although a child must be given an opportunity to express their wishes, they cannot be compelled to do so. Evidence of a child’s wishes will be placed before the court through the report of an independent expert (usually a psychologist or a social worker) either employed by the court (called a Court Child Expert) or jointly appointed by the parties (called a Single Expert). The expert will also evaluate the parties’ com - peting proposals and make recommendations to the court about what arrangements they consider to be in the child’s best interests. 2.3.3 Age/Maturity of the Child Whilst a child’s wishes ought to be given proper con - sideration, their importance in a particular case will depend upon other factors, such as the child’s age or maturity and level of understanding of what is involved in the choice that they have expressed. For example, a child may not understand the long-term implica - tions of being separated from a parent, grandparent or sibling, which are factors the court must consider. The court is also required to consider the develop - mental, psychological, emotional and cultural needs of the child, and anything else that is relevant to the circumstances of the child. Although the wording of the Family Law Act has since changed, in Bondelmonte v Bondelmonte [2017] HCA 8 the High Court recognised that the influence of a parent may be relevant to the weight to be attributed to a child’s wishes. 2.3.4 Importance of Keeping Children Together The court must consider the benefit to the child of being able to have a relationship with their parents and other people who are significant, if it is safe to
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