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Where parents share parental responsibility for a child, whether by virtue of an Order of the Court or by operation of the presumption contained in the legislation, they are required to discuss and agree on major long term issues relating to the welfare of the child.   If an Order is in place for shared parental responsibility, then an Order of the Court is required if the parties are unable to agree on matters of parental responsibility.

In both the Family Law Act and the Family Court Act, where a child lives is a major long term issue relating to the welfare of the child, where that decision will affect the manner in which the child lives with or spends time with the other parent.

In other words, if one parent seeks to relocate away from their current home and to take the child or children with them, then either agreement or a Court order will be required.   Commonly referred to a “relocation”, such applications are not uncommon in Western Australia.

There is, of course, no specific provision in either the Family Law Act 1975 or the Family Court Act 1997 for such cases.

The Court is required to consider each case as it relates to the care of children by reference to the provisions of those Acts.

In a recent decision by the Family Court of Western Australia, one of the parents of two children sought to relocate to Country A with the parties’ children[1].

The case was found to turn on its particular facts, but serves as a reminder of the factors to be considered in determining what has come to be known as a “relocation case”.

The decision of His Honour reminds us that:

  1. The Court is required to make every decision about the care of children with the children’s interests as the paramount consideration;
  2. There is no onus on either parent to show that relocation should or should not be allowed, save as it relates to the bona fides of each position:
  3. The Court is not bound by the proposals of either party and subject to the provision of procedural fairness (that is giving each party the opportunity to consider and make submissions on any options the Court is considering);
  4. The Court is still required to follow the path set down in the legislation:
    • Is it in the children’s best interests for the presumption of equal shared parental responsibility to apply;
    • If so, is it in the children’s best interests and reasonably practicable for the children to live in the shared care of the parties;
      • If so, the Court must consider making such an Order;
      • If not, then,
    • Is it in the children’s best interests and reasonably practical for them to spend substantial and significant time with the other parent;
      • If so the Court must consider making such an Order;
      • If not, then,
    • What Orders can be made to ensure the children’s best interests can be met?

5. The Court must consider the primary and additional considerations set out in Section 60CC of the Family Law Act (Section 66CC of the FCA) and the considerations as to reasonably practical set out in Section 65DAA (5) of the Family Law Act (Section 89DAA of the FCA).

6. In cases where one parent is seeking to move away from the current arrangements, then the Court is likely to focus on that issue, and consider whether and how a child may maintain contact with the “left behind” parent, given the distance that will be created.

In this case, the Court had the benefit of a Single Expert Report that suggested that it would be “devastating” for the children if they were separated from one of their parents – both of whom were otherwise described as good, child focussed and able parents, who had each taken every opportunity to participate in the lives of the children to date.

In the result the Court made Orders that did not allow the Applicant to relocate with the children. Instead, orders were made for the parties to share parental responsibility and for the children to live in the shared care of the parties.

What this most recent case reminds us is that, in the event a parent seeks to relocate away from their current home, in such a way as it will change the way in which a child will be able to spend time with the other parent, careful consideration must be given to the three W’s and the H:

  1. Where does the parent wish to relocate to;
  2. Why do they wish to do so?
    • Why is it in the best interests of the child that they be permitted to do so?
    • Are the reasons bona fide or is there a risk the Court will find that it is to avoid the children enjoying a meaningful relationship with the other parent?
  3. When do they propose to do so;
  4. How will the child or children spend time with the other parent if the move is allowed:
    • How often?
    • How will it be arranged?
    • Who will pay for the costs of spending time?
    • Can the child or children travel long distances unaccompanied, and if not, what are the costs of travel going to be?

It is these questions that your family lawyer will ask you at any meeting to discuss your wish to relocate.

[1] GIALLO and RUGGERI [2017] FCWA 132

E: jane.johnson@kimwilson.com.au



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