In the process of relocate, in family law, equal shared parental responsibility requires both parents to make major long-term decisions together regarding a child such as a child’s health, education, religious upbringing and changes to a child’s living arrangements.
Section 61C of the Family Law Act
Pursuant to section 61C of the Family Law Act, unless there is a Court Order to the contrary, both parents have shared parental responsibility of a child. Accordingly, if there are no Court orders and a parent seeks to relocate with a child, then that parent needs to obtain the consent of the other parent.
Similarly, if orders are obtained in the Federal Circuit Court and Family Court of Australia for parents to have shared parental responsibility, then the party seeking to relocate with a child must obtain the other parent’s consent. If such consent is obtained, it is advisable to obtain same in writing.
Applying for Relocation Orders
If a parent does not consent to the other parent relocating with the child, then the parent who seeks to relocate can make an Application to the Federal Circuit and Family Court of Australia seeking orders that enables them to relocate with the child.
Sole Parental Responsibility and Relocation
However, if a parent has a Court Order which provides that they are to have sole parental responsibility, they don’t need to obtain the other parent’s consent to relocate. However, even with sole parental responsibility, consideration needs to be had as to whether the relocation makes it difficult or impractical for a child to spend time with the other party pursuant to a Court Order as this could prove problematic.
Case Law: A v A Relocation Approach (2000)
The case of A v A: Relocation Approach (2000) considerations that are to be considered in relocation cases. The considerations include but are not limited to:
- A court cannot proceed to determine the issues in a way which separates the issue of relocation and that of the best interests of the child;
- The parent seeking to relocation does not have to satisfy the Court that there is a compelling reason as to why they seek to relocate with the child;
- If the freedom of a parent to move with the child encroaches upon the best interests of the child, then the best interest of the child takes priority over that of the parent;
- The court is required to evaluate the parties’ respective positions in respect to the relocation in the context of what is in the child’s best interest;
- Neither parent bears the onus of proof, which means near parents has to demonstrate that the proposed relocation would be or would not be in the best interest of the child; and
- The parent who seeks to relocate must satisfy the Court that their proposed orders are in the child’s best interest.
Relocate Without Consent
If a parent either:
- Relocates with a child of the relationship without the consent of the other party; or
- The non-relocating parent becomes aware that the other parent has made arrangements to relocate with a child of the relationship
Then the non-relocating parent can file an Application with the Family Court and Federal Circuit Court of the Australia seeking a recovery order or an urgent parenting order for the child to return to their usual residence, or to stop the other parent from relocating with the child.
Breach of Court Orders
If a parent has relocated with the child and such relocation is in breach of current Orders made in the Family Court and Federal Circuit Court of Australia, then the non-relocating parent also has the option of filing either a Contravention Application or an Enforcement Application with the Court. To know more, contact Michael Vasilli today!
