When parties to a de facto or marital relationship separate, there are often a number of issues which must be considered, discussed and decided. One issue which often becomes the subject of Court disputes following the breakdown of a relationship is the interstate and international relocation of children.

Parents may choose to relocate for a number of reasons: they may be fleeing from domestic violence, moving to pursue better work opportunities, or moving to be closer to family, friends and other support networks. While parents do not need to show compelling reasons to relocate, applications for relocation create significant challenges for the Court, in that, where the relocation is opposed, the Court must then determine where the child shall live: with the relocating parent, or with the remaining parent? As with any other parenting dispute which comes before it, the Court must make decisions for the child based on what is in their best interests.

The recent decision of Babock & Waddell [2018] FamCA 276, is a recent case where the Court has had to consider an application for the interstate relocation of the subject child. In this matter, the Mother, Ms Waddell, sought orders that she be permitted to relocate the subject child’s residence to Perth. Arguing that the relocation would impact upon his meaningful relationship with the child, the Father, Mr Babock, opposed the relocation, and sought that the Mother and child remain living in Sydney. The Trial Judge confirmed the current position of the law, noting that, “parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act) with a view to determining what orders, if any, are in the best interests of the children.”

Upon comprehensively considering each of the matters set out in s60CC of the Act, and both parties competing proposals, the Trial Judge made orders allowing the relocation of the child. In coming to his decision, the Trial Judge considered the application of the Act in relation to parental responsibility and the subsequent need to consider making orders for equal or substantial and significant time, the benefit of relocation on the mother’s mental health and how this would impact the child, the nature of the child’s relationship with each parent and others, the nature of the parents relationships with each other, the practical difficulties of the child spending time with each parent, the child’s wishes, each parents capacity to meet the needs of the child, and issues of domestic violence. While the Trial Judge recognised that the child may initially suffer a period of distress at being separated from the Father, the paternal extended family, and her Sydney based friends, he considered the relocation to be in the child’s best interests when looking at the medium to long-term benefits it would have for the child. The orders for the relocation of the child were upheld upon appeal by the Full Court of the Family Court in Sydney: Babock & Waddell [2019] FamCAFC 129. This case provides just one example of a matter where relocation was seen to be the more preferable option for the child.

Determining whether a parent should be able to relocate a child’s primary residence, either interstate or internationally, is often a complex matter which requires consideration of a number of factors. The above case example makes this clear. If you are going through a separation, and are struggling to determine living arrangements for your child, come and see our Family Law team for advice on your options and obligations.