Relocation matters are approached in the same way as any other parenting matter. The question that still needs to be asked is, ‘WHAT IS IN THE CHILD’S BEST INTERESTS?’.
The primary considerations in determining what is in the child’s best interests are:
- The benefit to the child of having a meaningful relationship with both of the child‘s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Noting the above, it should be safe to assume that if the non-relocating parent were unable to maintain a meaningful relationship with the child if the relocation order was granted, then the non-relocating parent could potentially succeed in opposing a relocation application. It should also be safe to assume that if there was an unacceptable risk of harm to the child in the relocating parent’s care then the Court would be unlikely to grant the relocation order.
Unfortunately, it is never that simple. family law is highly discretionary, and every case has a unique set of circumstances. In relocation cases, case law also indicates that consideration is given to the relocating parent’s right to freedom of movement. In the case of Franklyn & Franklyn for example the Full Court said at paragraph 28:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders…..….. Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children…. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests…..
If one parent is seeking to relocate with the children, book an appointment and speak to one of our solicitors at Men’s Legal Service for advice on how the law would apply to your individual circumstances.