News & Resources

Home » Blog » Parenting / Custody » Interstate and International Relocation Matters in Australia

Interstate and International Relocation Matters in Australia

At Cominos Family Lawyers, we are experts in Relocation matters. We have been involved in relocation cases for the past 10 years. We have helped many clients relocate to another state or country, where it has been in the best interests of the child or children. We have also represented parents who have challenged the relocation of their children

 

Here are some things you need to know about Interstate or International Relocation:

  • Relocation Matters are not different parenting matters (they come under the same family law legislation as any parenting matter that is in Court);
  • The focus and guiding principle – is “the best interests of the child”
  • The Court will consider the views of the child(ren) ( but does not have to follow these views- a lot will depend on the age of the children and the influence of the parents)
  • The Court will consider the existing (or non-existing in some cases) relationship of the child with the non-relocating parent
  • All options will be explored- including whether the non-relocating parent could relocate or whether the parent who intends to relocate could do so without the children;
  • Whether there is any family violence or other circumstances of this nature that make it unsafe for children and the other parent;
  • The relocating parent does not have to present a compelling case- they simply need to show how its in the best interests of the child to relocate and what plans will be in place to ensure that the non-relocating parent has a relationship with the children
  • The age of the children is relevant
  • There is no one size fits all approach, each matter is individual and based on its specific facts and circumstances.

Below is a list of some of the recent cases relating to relocation:

Holzman & Holzman (January 2018)

A married couple who met in Western Australia moved to Darwin where the husband’s family lives, they had two children and later divorced. Their kids are 8 and 4 years old and live primarily with mother and have four nights a fortnight with the father. The father remarried and had 3 kids with his second wife.

The mother was severely unhappy from the breakdown of the marriage and felt terribly isolated in Darwin. The mother bought a home in WA and took the children to WA without telling father. The father sought a recovery order and the Court ordered that the mother move back to Darwin for the proceedings. The mother sought permission to go back to WA to live and relocate children with her.

The Court found that the mother’s severe unhappiness affected her parental capacity and in turn would affect the children’s well-being in perceiving it since she was their primary carer. The Court acknowledged that whilst the children’s relationship with the father was important and to stay in the same city would be beneficial for them the children’s best interests in this scenario was to stay with the mother and in a town or state where she would not be suffering from unhappiness or isolation.

The relocation would be beneficial for the impact from the children witnessing their mother’s unhappiness outweighed the desirability of the children staying in closer proximity to the father. The Court allowed the mother to relocate the children to WA and the father was allowed to visit them at anytime and the children would spend their holidays with the father in Darwin.

Wendland (2017)  

A recent case in the Family Court of Appeal Wendland looked at whether a mother who had been in the defence force for 20 years could relocate her 4-year-old to wherever she was posted around Australia when the father was located in QLD.

The father said that the relocation would severely impact his relationship with the child. Even though the family expert report suggested the relocation would indeed affect the child’s relationship with the father, the judge considered that since the mother was the primary carer the effect of staying in QLD and ending her career was not a reasonable option.

The Court allowed the mother to relocate with the child interstate if she was posted elsewhere as the Court also found that the father could continue his relationship with the child through regular communication and could easily fly to see the child with minimal expense.

Shan & Prasad (February 2018)

Two doctors from India moved to Australia and had two children here, after they separated the mother moved to a town close to Sydney and the dad who lived in Sydney would go and spend time with the kids when he could.

Unknown to the mother the father submitted passport applications for the children by forging her signature. When he had the passports the next arranged time for the children to spend time with him, the father took the children and flew them to India without consent or knowledge to the mother.

When the mother found out she commenced proceedings in Australia and the father commenced proceedings in India. The Court in India ordered for the father to return the children back to the mother and to live with her in Australia.

After they were eventually returned to the mother in Australia the Federal Circuit Court ordered that the mother have full parental responsibility and care for the children and that the father was not allowed any contact with them whatsoever. The Court as a result said that the mother had a right to relocate the children interstate or internationally without the father’s consent as the mother was the primary carer and the children had no relationship with Father.

 

The information provided herein is not legal advice- it is for the purposes of general information only. For confidential advice please call Fiona Hotop on 028999 1800 or email fiona@cominoslawyers.com.au

News & Resources