Case Study: Custodial Decisions – Relocation of the Custodial Parent

A review by the High Court in U & U.

In 2002 the High Court considered the highly contentious issue of the relocation of custodial parent or more particularly the residential parent to a geographical location a significant distance away from either:

  • The non-custodial parent; or
  • The place of original co-habitation.

In many disputes, the true motivations of the adult parties seeking relocation appear to have little concern for the specific rights or needs of the child.

(The Family Law Act 1975 makes the child’s best interests a priority over the parents’ when considering child custody)

In the case in question the facts, in abbreviated form, were:

  • Both parental parties had a strong connection with India.
  • The wife had previously left the jurisdiction and fled to Mumbai in India with the infant child and against the wishes of the non-custodial parent.
  • The custodial parent had returned to Australia for the purposes of an attempt at reconciliation.
  • The reconciliation was unsuccessful.
  • The non-custodial parent had notified the Immigration Department and placed the child “N” on a “Watch list” following fear by the non-custodial parent that the custodial parent and child proposed to leave the jurisdiction permanently.
  • The wife, the child “N” and the husband resided in Australia until such time as the court hearing because of the immigration restrictions imposed.

In determining the proceedings the High Court found that it must not determine if there are compelling reasons for the residential parent to relocate. The court rather should look at all available proposals and all available evidence and choose the best option that benefits the interests of the child notwithstanding the negative effects that that determination may have on the parents.

The court found that the way to achieve the objective as stated above was to:

  1. Identify the relevant proposals for the future care of the child.
  2. Explain the advantages and disadvantages of each proposal. This should be achieved by examining the factors set out in the Family Law Act, particularly at part VII and more specifically at Section 60B(2)(a) and (b).
  3. Explain why one proposal is to be preferred, ensuring that focus remains on the principle that the child’s best needs are paramount in all proceedings before the Court, but noting that the sole consideration in determining the issues should not exclusively be the specific needs of the child. In considering the factors reference should be given to the weight of each factor in coming up with and determining the issue before the Court.

In Australia, no particular weight should be given to the residential parent’s rights of freedom of movement, happiness, development of personal relationships, financial support or employment prospects. They are matters that can be considered but should not have any higher weight than other factors coincidental to the determination of the issues.

It is to be noted that reforms to the Family Law Act in 1996 highlighted specifically the right of the child to know and be cared for by both parents. Additionally, the legislation anticipated regular contact by the child with the child’s non-residential parent for the child’s overall development and general betterment.

A review of earlier cases and material available through the Australian Bureau of Statistics should be considered in providing background information to issues relating to relocation. Evidence considered by the court at varying stages indicates the following:-

  • 84% of residential parents are female.
  • 90% of applications for consideration relating to change of residential address come following decisions made by the female custodial parent to relocate.
  • Anecdotal evidence from Judges of the Family Law Court indicate that 18 of the past 20 court applications relating to residential relocation have gone in favour of the party seeking the residential relocation.

In determining issues relating to residential relocation the court has 4 primary options available.

  1. An order that the residential parent is restrained from moving away from the residential parent’s current address, that is near to the non-custodial parent.
  2. The residential parent cannot go and the child must relocate with the previously non-residential partner.
  3. The child may accompany the residential parent in the residential transfer.
  4. The child should relocate with the residential parent but the non-residential partner should move also to be nearby to the child.

In many instances, the parties do not identify all the proposals detailed above for determination in the court proceedings. For example, a partner seeking to relocate would rarely put in issue matters relating to the relinquishing of residential responsibility for the infant child or, the alternate proposal of remaining where the custodial parent resides at the time of the commencement of the proceedings. Similarly, it is unlikely that the residential parent would, under normal circumstances, seek orders seeking the relocation of the non-residential parent to that place where the residential parent proposes to move.

The court in U & U indicated that it can impose orders not sought by the parties if the court deems that the orders replacing those sought by the partners provide for the optimal development of the interests and the well-being of the infant child. The High Court said that not to consider options to the ultimate betterment of the child would “destroy the fundamental requirement of the [Family Law] Act that the court regards the best interests of the child as paramount. Those interests may or may not, coincide with what one or both the parents put forward to the Family Court as appropriate arrangements for residence and contact”. Any proposal that the court seeks to impose by way of orders must, however, arise from the evidence of the case. The court may not make orders, for argument sake requiring the non-custodial parent to relocate if indeed the non-custodial parent’s circumstances are such that he or she cannot meet that order. In the matter of U & U there was clear evidence that both parties had a strong connection to India and that there was arguable case that an order directing both parties to relocate may well have presented as a reasonable option in all the circumstances.

The court, however, did not make such a finding and indeed an order was made for the child to remain nearby to the non-residential parent.

Significant and complex issues arise where custodial parties seek to move. In many instances, the custodial parties position can best be bettered by moving particularly in the circumstances of promotional job offers, the accessing of extended family support, extent and adequacy of alternate contact arrangements impact upon a carer’s ability to form and maintain new relationships, generalised impact of the freedom of movement.

All these issues require careful consideration so as to ensure that appropriate justice is done to all parties, particularly the child given the court’s duty to best protect the rights of the child.

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The contents of this article are designed to provide basic information on the law only. The information provided is an overview of the subject mentioned and, as such, is intended as general information rather than as legal advice. Nothing contained in this article, therefore, should be taken as legal advice and no specific action is advised in relation to any particular circumstance.