Do you want to relocate to another state or to another country with the children, but the other parent will not agree? Read on to find out how the Family Court determines relocation matters.
The legislation relating to relocation matters is the same as it is for any parenting matter. For information relating to how the Family Court determines parenting matters, please click here.
In parenting matters the best interests of the children is the paramount consideration. However, the issues in relocation matters are often significantly more acute, due to the proposed geographical separation of parents from their children, especially in proposed international relocation cases [see: Zahawi & Rayne [2016] FamCAFC 90].
The interests of the parties may be taken into account when deciding relocation matters. However, the best interests of the children remain paramount. The parent wanting to relocate with the children does not need to show "compelling" reasons for wanting to relocate with the children, though their reasons for wanting to relocate are considered by the Court.
There is no presumption that the children will be allowed to relocate with the parent who they are living with at the time. In relocation matters, the Family Court will consider the primary and additional considerations set out in our previous article to determine what is in the children's best interests.
The Family Court understands that they should not interfere with a person's right to have freedom of movement, unless it is in the children's best interests to do so.
In two recent Family Court of WA decisions, Chesterfield and Donati [2017] FCWA 116 and Giallo and Ruggeri [2017] FCWA 132, (delivered on 28 September 2017 and 18 October 2017 respectively) the Family Court refused relocation.
In the matter of Chesterfield and Donati, the mother sought to relocate with the parties' two young children to Victoria. The father opposed the relocation. The Family Court determined that it was in the children's best interests for the children to remain in WA and spend regular time with the father.
In the matter of Giallo and Ruggeri, the parents had shared care of the children and both parents had a good relationship with the children. In this matter, the Single Expert Witness suggested in his report that relocation would be devastating for the children. The Family Court agreed with the findings of the Single Expert Witness and as such relocation was refused.
These are just two recent examples where relocation was refused by the Family Court. There are many cases where one of the parents is allowed to relocate with the children, on the basis that relocation was in the children's best interests. Every case is different.
If you require family law advice in relation to parenting matters and relocation, please contact Applecross Family Lawyers on (08) 9364 9915 or 0474 458 340.