The Challenges of Relocation of a Parent and Welfare of the Child

Gurpal Singh is the principal lawyer of Melbourne law firm, Saundh Singh & Smith Lawyers

One of the most tricky, daunting and difficult issues which may require determination in the parenting matter is a proposal of a parent proposing to live with the child at a place long away from the other parent making it practically difficult for the other parent to have an access to the child on regular basis and/or the shared parenting responsibility. The relocation dispute is about the exercise of parental responsibility in relation to one of the ‘major long-terms issues’ require determination.

The major long-term issue about the case, welfare and development of the child includes but not limited to a. the child’s education (both current and future); b. the child’s religious and cultural upbringing; and c. the child’s health; and d. the child’s name; and e. the changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

The issue of relocation significantly more difficult. The short distance moves will possibly not fall into the scope of the definition. A move to a different suburb in the same city or state may require a rearrangement of changeover and/or times but to seek restraining the other parent’s freedom of movement, one would require to establish the immense difficulty in spending time with the child. Obviously, the determination of this ‘immense difficulty’ would need to take into account the technology advancement making the communication more comfortable and readily available for the parents.

The Family Law Act 1975 does not provide extensive and clear direction in this respect which makes the job of the lawyers and the judges more difficult and many a times failing to meet up with the expectations of the client. Notwithstanding the practical difficulties, the focus in determining such a dispute would always be the ease and welfare of the child. Like it may be more difficult for a parent to travel to meet with the child however such difficulty would carry little sympathy if the amount of time and travel required for the child to undertake is more and not convenient. The restriction on the other parent’s freedom of movement is focussed on the impact on the child’s time with a parent, not siblings, grandparents, aunts, uncles, cousins, best friends, peer group mates and class-mates. The meeting with the other important people is relevant and allowed only to the extent of best interest of the child. However, the primary focus is on the time with the other parent who would be caused the disadvantage by making such a change.

The earlier decision of the court required determination of factors in the case of international relocation including but not limited to a. the welfare of the child being the paramount consideration; b. reasonable proposal of the parent with the residence order seeking to live abroad carry the weight; c. the effect on the applicant parent and the new family of the child of a refusal of leave; d. effect upon the child of the denial of the contact with the other parent and the extended family; e. the opportunity for continuing the contact between the child and the parent left behind being very significant. However, there been a great deliberation on the different issues causing an impact on the child since the delivery of this judgment in the year 2001. The courts have now opined that the above guidance is redolent with gender-based assumptions to the role and relationship of parents with the child. The courts would base its conclusion on the primary factors being the welfare of the child; the wishes and feelings of the parents are relevant only in the context of evaluating and determining the welfare of the child.

In a very interesting matter of Wendland [2017] the issue was about the relocation of a child born in 2013 while the parties separated in 2016. The mother had served the Australian Defence Force for 18 years since her age of 20. The parties met and lived in Queensland. In the year 2016 the mother was told that she would be posted to another town from January 2017. The mother made an application to the court for the relocation of the child and the matter ended up in the full court which favoured the mother while giving a great deal of importance to the fact that at the time of the relationship, the father was aware of the peculiar situation of the mother.

By Gurpal Singh

Read more from Gurpal Singh:

The Final Parenting Orders and Variation

Property Division in the Wake of Relation Breakdown

Surrogacy and Parentage

Pre-nuptial (prenups) Binding Financial Agreements

Family Law – parallel proceedings in Australia and India

Non-human children of the family – Separation predicament

Spousal Maintenance – Interim and/or Urgent