1. In today’s world with technology being readily available and an important part of everyone’s life, people move from country to country for differing reasons. The world has become a small place and many people interchange with employment opportunities during their lifetime to different continents. Most people move because of their employment opportunities. Many however move because of the political situation and stability in their specific country. Whatever their reasoning when there are divorced families and blended families the issues become more complex than simply packing up your personal belongings and moving to a different country.
2. More often than not the primary care-giving parent makes a decision to move and has given mature and rational thought to the matter, then it is presumed that at first glance the relocation will be in the best interests of the child/children. An applicant parent should and ought to resolve this relocation with the other parents and obtain the requisite consent. In the event that the non-relocating parent refuses consent, the relocating parent must approach the court for such court to grant such consent which may not always be granted.
3. It is noted that the motive of the primary caregiver to relocate is an important factor to be taken into account in determining the best interests of the child in proceedings of this nature. It is similarly important to consider the motive for relocation where the issues of primary residence of minor child/ren and relocation are intertwined. Although a bona fide and reasonable motive in itself is not enough to substantiate relocation, it is an important factor that a court takes into consideration.
4. The fact that a decision has been made by the parent who has primary care of the child/children does not give rise to some sort of rebuttable presumption that such decision is correct. The interests of the child/children remain paramount. That is the central and constant consideration that a court is concerned with.
5. It is undisputed that relocation involves the continuing fragmentation of the original family unit with the associated distress of parents and children separated from each other and from familiar environments.
6. Relocation disputes are the most difficult to adjudicate as they usually involve two competent and committed parents, one with sound reasons for wishing to relocate, the other with equally valid reasons for resisting the application. Obviously, each case must be decided on its own facts which renders the principles developed eminently flexible and capable of adaptation to varying circumstances.
7. It is important to consider the factors that courts usually take into account. The following is a list of such factors arising from a consideration of some past relocation decisions. It is also important to follow the court process in order for there to be a smooth relocation process.
8. That was not the case unfortunately with Sally Faulker (“Sally”). This involved a mother who was armed with an Australian Court order embarked on a “rescue mission” with journalist Tara Brown and her team to attempt to recover her children from the care of Ms Faulkner’s estranged former partner, Ali Elamine (“Ali”). Ali had travelled to Lebanon under the guise of a holiday and informed Sally that he would not be returning to Australia. Lebanon is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) which complicated matters on an international level. The children remain in Lebanon and Sally was arrested and spent two months behind bars with Tara Brown and her team until all charges were dropped and they returned to Australia.
9. The traditional position in most courts is that it is generally considered to be in the best interest of the child to remain with the custodial parent however on occasion courts cannot readily assume that the primary caregiver’s proposals are necessarily compatible with the child’s welfare and as such different factors must be considered in assessing what is in the best interests of the child, including the need to preserve a particular family unit of which that child is a part, and the advantages and disadvantages that the move will have for the child (whether or not he/she will suffer trauma if removed from one parent).
10. The motive for relocation must be genuine, reasonable and bona fide, and should not serve merely to frustrate the contact rights of the other parent and the relocating parent’s plan must be properly researched and structured.
11. There is of course the relocating parent’s right to freedom of movement and family life is thus always a factor taken into account by the court weighed up against the non-relocating parent’s right of contact with the child and if a plan has been put in place to preserve the relationship of the child and the non-relocating parent.
12. In appropriate circumstances, depending on the age and maturity of the child, the court may have regard to the views of the child regarding the proposed relocation.
Our Family Law team here at O’Brien Connors & Kennett is available to you if you have any further questions or require relevant legal services, feel free to contact us or visit our Northern Beaches office.
