A “relocation case” arises when a parent wants to move to a place far away enough from their current location that it will impact the time that the other parent spends with the children, resulting in a disagreement on the children’s future living situation and arrangements to spend time with each parent.
Disputes about whether a parent can relocate with children are amongst the most hotly contested cases between separated parents. The law has been relatively settled, but major changes to the parenting provisions of the Family Law Act 1975 (Cth) start on 6 May 2024. This means that the outcomes of applications by parents to move with children overseas, interstate or within a state will be more difficult to predict in the near future.
What changes come in for relocation cases in Family Law on 6 May 2024?
The changes to the parenting provisions include:
- There will no longer be a presumption of equal shared parental responsibility. If there are no orders, then parents will continue to share “parental responsibility”. Equal shared parental responsibility orders require parents to share the responsibility to make major decisions about their children, such as education and health matters. If, however, the court is asked to intervene it will make orders for “long-term decision-making”. Sole long-term decision-making orders will likely be made more frequently than sole parental responsibility orders were made in the past. A parent with a joint long-term decision-making order will usually be expected to consult with the other parent and make a genuine effort to come to a joint decision.
- The link between equal shared parental responsibility (now long-term decision-making) and equal time (or joint custody) will be removed. This means that even if equal long-term decision-making responsibility is ordered, equal-time orders may be made less often.
- The concept of a parent spending “significant and substantial time” with a child will be removed. This has been an important metric or measure of the time children spend with the parent who does not have their primary care.
- There will be greater emphasis on family violence when considering the arrangements which are in the best interests of the children.
The list of factors for the court to consider in determining the best interests of children will be shorter:
- Importantly, the focus on preserving a “meaningful relationship” has been removed as a primary consideration when assessing the best interests of children. This means that there will no longer be an express factor that the court considers the benefit to the children of both of their parents having a meaningful involvement in their lives.
- The “practical difficulty and expense” of spending time and communication arrangements has also been removed.
- There is, however, a “catch-all” consideration of “anything else that is relevant”, which will provide a wide discretion as to what issues are relevant in assessing the best interests of children.
What is the effect of these changes on applications to relocate with children – will there be more successful relocation cases in Australia?
After significant changes in the law, there is usually a period of uncertainty and inconsistent decision-making before appeals to the Full Court of the Federal Circuit and Family Court of Australia and to the High Court of Australia clarify the effect of the legislative changes. It will be some time before cases are decided by the courts, which can be relied on as to precedents or examples of how the court will decide relocation cases.
Our expectation is that:
- Family violence will impact parenting arrangements to a greater extent than previously. For example, where there has been family violence, the victim of family violence is more likely to be given sole long-term decision-making. Such an approach recognises that negotiations between the parents impacted by family violence may be more distressing and less successful than negotiations between parties where there are no family violence allegations.
- Sole long-term decision-making orders will be made more frequently than sole parental responsibility orders were made in the past.
- Although decisions about relocation are not within the bundle of responsibilities covered by “parental responsibility” or “long-term decision-making”, it may be easier for a parent to succeed in a relocation application if that parent has a sole long-term decision making order.
- Equal-time orders will be made less frequently, particularly if there has been family violence.
- Equal-time orders have, in the past, created a natural barrier to successful relocation applications. If these are less frequently made, it is possible that relocation applications will be more likely to succeed.
- Relocation orders will likely be made more frequently, particularly where there has been family violence.
What do you need to do?
If you want to relocate with the children or anticipate that the other parent may make such an application, you should:
- Seek legal advice before taking action to relocate, or if your ex-partner and parent of your children is proposing to move without your consent.
- Get advice now on how the changes may affect you.
- Make sure you have a lawyer who stays up-to-date with the latest case law developments.
- Ensure your case is presented by reference to the new law.
