Moving out of Sydney after Separation

2 May 2019

By Lisa Wagner & Lucy Warhurst

Are you seeking to relocate with your child?

Or are you facing a relocation application by your former spouse?

Read on to find out more about family law relocation applications.

In making a decision in respect of parenting arrangements, including the determination of relocation applications, the Court takes into account the primary considerations as set out in Section 60CC of the Family Law Act 1975 as to what is in the best interests of the child.

In determining what is in the child’s best interest the Court must take into account the following primary considerations in accordance with Section 60CC of the Family Law Act 1975:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. We note, however, that the presumption of equal shared parental responsibility is rebutted in circumstances where family violence has occurred.

Further, pursuant to section 65DAA of the Family Law Act 1975, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

  1. Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  2. Consider whether the child spending equal time with each of the parents is reasonably practicable; and
  3. If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

So, how does the above relate to a relocation application?

Firstly, no particular section of the Family Law Act 1975, specifically sets out the law in respect of the issue of relocation. Rather, each relocation case is considered in the context of the best interests of the children and particularly Part VII of the Family Law Act 1975.

In the case of A v A: Relocation Approach (2000) FLC the Full Court of the Family Court set out an approach to be used as a guide in determining parenting cases involving relocation. When considering parenting orders in the context of a relocation application by one parent, the case of A v A stands as authority for the following:

  1. That the issues of relocation and the best interests of the child must be considered as interdependent matters;
  2. A persuasive argument in support of or against, the proposed relocation does not need to be set out;
  3. The interests of both the relocating parent and the non-relocating parent must be evaluated in the context of the best interests of the child;
  4. The Court is not obliged to disregard the legitimate interests of the parents. However, where there is a conflict between the legitimate interest of the child’s parents, the paramount consideration of the child’s best interest interests must be given priority.
  5. The parent seeking to vary the present arrangements and ultimately change the child’s place of residence bears the onus of satisfying the Court that the relocation is in the child’s best interests.

Other considerations that the Court will take into account when determining a relocation application account include:

  1. Whether a meaningful relationship between the child and the non-relocating parent could be maintained despite the reduced time with the non-relocating parent. Also relevant to this consideration are the child’s age and the relocating parent’s willingness to facilitate a relationship.
  2. The benefit to the child having a meaningful relationship with both parents.
  3. The need to protect the child from physical or psychological harm and from being subject or exposed to abuse, neglect or family violence.
  4. Any views expressed by the child.
  5. The nature of the relationship the child has with each parent and others.
  6. The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, spending time, communicating with and maintaining the child.
  7. The likely effect of the proposed move on the child.
  8. Whether the practical difficulty and expense of the child spending time with the other parent will substantially affect the child’s right to maintain personal relations and contact with both parents on a regular basis. For example, if the child is an infant, telephone contact is difficult meaning that communication with the other parent is limited.
  9. Whether an order which is sought would be least likely to lead to further court proceedings being initiated by the other party.

FAQS – here are some of the questions that we are asked frequently:

  1. Can I move overseas or interstate with my child without the permission of their father/mother?
  2. What if I can’t afford to stay in Sydney but my partner is refusing to agree to me relocating?
  3. Will my partner be successful in relocating with my child?

If you are considering relocating or your partner is attempting to relocate with your child or you have pondered any of the above questions, we are available to talk about how best to approach this particular situation and look forward to hearing from you.  We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station. Please contact us to find out more or speak to one of our specialists on 94370010 or email enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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