There have also been studies conducted on the number of relocation decisions made by the courts. Easteal, Behrens and Young carried out an empirical study of 46 relocation decisions made in the Canberra registry of the Family Court of Australia and the Perth registry of the Family Court of Western Australia over an 18-month period (from July 1997 to December 1998).18 Thirty-eight of the cases proceeded to judgment, while the remainder were settled by consent. Although this is a relatively small sample size, insight can be gained from the researchers’ analysis of the demographic characteristics of the people involved in these cases.
Of the 38 cases which proceeded to judgment (18 in the Canberra registry and 20 in the Perth registry), 36 of the movers were women. Twenty-five (69%) were permitted to move. The male mover in Western Australia was permitted to relocate, whilst the male mover in Canberra was not.19 Easteal et al considered whether distance impacted on the outcome of the case and concluded it did not – 67% of those going a long distance or overseas were allowed to relocate, compared to 75% of those moving a short distance.20
More recent data has been provided to the Family Law Council by the Family Court of Western Australia.21 A survey was conducted of all the relocation cases in the Family Court of Western Australia between 2000 and 2005. In that time there was a total of 70 relocation cases heard. Of these 70 cases:
51 residence parents were allowed to relocate (72.9%)
16 residence parents were not allowed to relocate (22.9%), and
two of these decisions were overturned on appeal.
In three of the 70 cases a change of residence for the child was ordered (4.3%) and in a few cases the residence parent was allowed to relocate at a set time in the future. In one case the future relocation was permitted only once certain conditions were met. One family had two relocation cases.
The data from Western Australia indicate that relocation is a regularly litigated issue in their Family Court, with an average of 12 relocation matters per year since 2000.22 No precise data are available regarding the number of relocation matters heard in other Australian states and territories.
The frequency with which relocation matters appear in court is not surprising. Relocation is likely to be a contested issue because the proposed move of the child will affect the level of contact that child has with the parent left behind. The separation of the parents generally will have already reduced the level of contact the child has with one parent. A proposed relocation may make even this reduced level of contact difficult to sustain.
The Australian Institute of Family Studies has researched contact patterns of children with one parent living elsewhere and found the following:
about a third (29.8%) have “little or no contact” – defined as less than once a year or never
18.9% have “intermittent contact” – defined as at least once every three months to once a year
half (51.3%) have “regular contact” – defined as daily to once a month.23
Of those children who have little or no contact, one reason was the physical distance between them and the non-resident parent. For example, the Household, Income and Labour Dynamics in Australia Survey conducted in 2001 found that 67% of both mothers and fathers in this category lived more than 50 km from their former partner. Further, 17% of mothers and 8% of fathers were not able to provide information about where their former partner was.24Of course it is not a simple case of physical separation equals little or no contact. There is a complex interplay of factors. In addition to relocation, the Australian Institute of Family Studies list three other important “R’s” that characterise this group – repartnered, residual bad feelings towards each other, and relative economic disadvantage.25
These statistics on the prevalence of divorce, movement of separated parents, the number of relocation cases going to court, and patterns of contact after separation indicate that relocation is a significant issue in family law. While relocation cases come before the court with regularity, the law on relocation has been described as “ambiguous”.26 This ambiguity extends to the very definition of the term relocation which, as explained below, has consequences for the way relocation decisions are made.
The current law in Australia does not provide a definition of “relocation” because there is no need to when these cases are considered to be “parenting cases where the proposal of one of the parties involves relocation” (which they are under the current law in Australia).27 If the Family Law Act was to refer to “relocation”, it is likely to be necessary to define this term. The question then arises as to how relocation would be defined for this purpose. This is a complex task and there are several issues for consideration.
Some states in the United States of America use distance as a trigger for the operation of their law on relocation. For example, the Louisiana statute only applies where the relocation is out of the state or more than 150 miles (241.5 km) from the previous residence. This would have excluded the Australian case of D and SV28 from being considered a relocation case, as it involved a move of 115 km (from Vermont South, in Melbourne’s eastern suburbs, to Drysdale, near Geelong, in Victoria).
The use of distance to define relocation does not take into account that the impact of distance may be different depending on the circumstances of the parties, or the place involved. For example, if the non-resident parent does not own a car, or cannot afford to spend large amounts of money on petrol, the availability of public transport services will impact on their ability to have contact with their child or children.
The following hypothetical illustrates the point. Ms Black is living in Canberra with her three children. Mr Black (the children’s father) lives a few suburbs away and the children stay with him every second weekend. He does not own a car, but can use the local bus service to collect the children from school on Friday afternoon and take them back to school the following Monday morning.
Ms Black proposes to relocate to Sydney with the children, which is 290 km north-east of Canberra. For Mr Black to travel from Canberra to Sydney and back to see his children there are a number of flights each day, two trains per day or a bus service that operates eight times per day (with the express service taking 3.25 hours and the non-express service taking four hours).29
Compare this to a proposal that Ms Black relocate to Griffith with the children, which is 349 km west of Canberra. There are no flights from Canberra to Griffith, so flying would require going via Sydney. There is no train service, so catching the train would also require going via Sydney. The same bus company which has eight services per day to Sydney has one service per day to Griffith. That service departs at 8:50pm and arrives at 3am (that is, a six-hour journey).
Therefore, while these two hypothetical relocations are of a similar distance, each would have markedly different consequences for Mr Black’s ease of contact with his children.30
The American Academy of Matrimonial Lawyers has developed a Model Relocation Act (upon which the Louisiana statute is based – discussed further in chapter 5 of this paper). The Model Act defines relocation in article 101(5) as “a change in the principal residence of a child for a period of  days or more, but does not include a temporary absence from the principal residence”.
The comments provided by the American Academy of Matrimonial Lawyers about the definitions article of the Model Act describe why they chose not to use a particular distance.
The difficulties that may be engendered by a relocation are not limited to a move across state lines, or a move of an arbitrarily chosen distance within a state, eg 100 or 150 miles. A visitation schedule may be significantly affected any time that a move is made by either the custodial or non-custodial party, particularly in heavily urbanised areas. A move of even a relatively short distance may create other problems if it impedes access to the child or involves a change of school district.
These comments shift the focus to a consideration of the effect of the move on the non-resident parent’s contact with the child. For the purpose of defining “major long-term issues”, the Shared Parental Responsibility Act uses the phrase “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.31
Along these lines, one possible way of defining relocation which the Council proposed in the discussion paper is “a move which will result in changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.32 This would be a definition that takes into account the impact of the move, rather than just the distance, and is consistent with the best interests of the child being the “paramount consideration, but not the sole consideration”.33
The discussion paper posed the following consultation question in relation to the legal definition of relocation:
If the Family Law Act was to refer to “relocation”, it is likely to be necessary to define this term. The question then arises as to how would relocation be defined for this purpose?
Submissions received by the Council on this consultation question were generally in favour of the Family Law Act providing a definition of “relocation”. There were differing views about the formulation of a definition. Before considering these, the few submissions that were specifically opposed to defining relocation will be outlined.
The Castan Centre for Human Rights Law stated that a definition of relocation would “serve no clear purpose”. The Centre believes that treating relocation matters as “parenting orders” within the meaning of section 64B is appropriate and that such cases would not benefit from being classified as a distinct category. The National Network for Indigenous Women’s Legal Services was similarly opposed to a definition, fearing this would marginalise the particular needs of Indigenous children. It cautioned that “one size does not fit all” and that it is important to take into account how a proposed relocation will affect Aboriginal children, their family lifestyle and social structure of the present and future.
The Chief Justice of the Family Court of Australia queried whether it would be necessary to define relocation, even if specific provisions were included in the Family Law Act and cited an unreported decision of Justice Faulks where he said:
It is an interesting definitional question as to whether children’s cases involving a proposal that they should be living about an hour and a half away from one parent or the other should properly be described as “relocation cases” given that in Sydney it would be feasible for the children to be living with their mother in the southern suburbs or with their father in the northern and spend a longer time getting between their parents than they would in travelling between Canberra, and in this case, G [township].
Nevertheless, the case was conducted at least in part on the basis that it was a relocation case and it is appropriate in those circumstances that I should approach the matter in accordance with the directions of the Full Court until such time as the Full Court determines that there are some matters which are not relocation cases when they simply involve the re-accommodation of one parent or the other.34
It was noted that “neither the Full Court nor the High Court has been called upon to address the issue of the distinction between a ‘relocation’ and a ‘reaccommodation’”.35
Submissions in favour of defining relocation
Most submissions were in favour of relocation being defined. Most submissions also agreed that the definition should not be based on distance. The Human Rights and Equal Opportunity Commission made the point that if there was a definition, it should be based not on distance per se, but on the impact of the distance and relocation on children and their parents. This was echoed in the suggested definition from the Shared Parenting Council of Australia that relocation should be defined “in terms of the effect on children, particularly young children, who are affected by travel of 40–60 minutes or more per contact visit”. This was also the view expressed by Mr Sean Van Gorp.
Family Services Australia believes a definition should take account of a range of factors in addition to distance. It believes that a focus on the difficulty experienced by a child in spending time with a parent does not address the issue of when the non-resident parent relocates, and “places a somewhat unreasonable expectation on one parent in relation to ensuring that a child maintains contact with another parent who has moved away”. Family Services Australia therefore advocates a definition that reflects an understanding that a child’s move will result in significant changes to the child’s environment, social and emotional connections, education and lifestyle.
Of the respondents who thought there should be a definition, most broadly agreed with the formulation proposed in the discussion paper, namely that relocation is: “a move which will result in changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.36
Women’s Legal Services Australia consider that a definition which takes into account the effect of the move in maintaining contact would be consistent with the definition of “major long-term issues” in the Shared Parental Responsibility Act mentioned above. The Aboriginal and Torres Strait Islander Legal Service (Qld South) Ltd stated that a transitory lifestyle is culturally entrenched in many Aboriginal and Torres Strait Islander people, and that the definition of relocation should be able to encompass a wide range of factual situations. They supported the definition in the discussion paper.
Some submissions suggested a few variations to the definition proposed in the discussion paper. For example, Centacare Sydney suggested adding to this definition the need to spend time with not only a parent but also “other relative”. The ACT Law Society similarly suggested adding “or other significant family member” to the end of the proposed definition. The Murray Mallee Community Legal Service said the suggested definition should be modified to read “a change to a child’s living arrangements that make it significantly and substantially more difficult for the child to have contact with a parent”.
The Chief Justice of the Family Court of Australia submitted that if this definition was to be recommended, it could be aligned with the amendments in the Shared Parental Responsibility Act by phrasing it as: “changes to the child’s living arrangements that make it significantly more difficult for the child to have a meaningful relationship with one parent”.
A few submissions agreed there should be a definition of relocation, but disagreed with the definition proposed in the discussion paper. The Victorian Department of Human Services suggested: “Relocation occurs when one parent changes their residence and thereby renders an existing or potential residence or contact arrangement or order impractical or inconsistent with the child’s best interests”. The submission from the Department of Family and Community Services and Indigenous Affairs suggested that relocation should be “defined in terms of the creation of significantly increased barriers to contact”.
Ms Donna Cooper, a lecturer from the Queensland University of Technology, suggested that the definition proposed by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report on the provisions of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 should be adopted, namely: “relocation is where a parent proposes to change the residence of a child in a way that would significantly impact upon the child’s ability to…reside regularly with the other parent and extended family…[and] spend time regularly with the other parent and extended family”.37
Most submissions that addressed this consultation question agreed that a definition of relocation was warranted, and most also agreed in broad terms with the Council’s proposed definition. This definition makes clear that it is changes to existing arrangements that are important, rather than distance.
Council has concluded that if legislative provisions relating to relocation are added to the Family Law Act, a definition of relocation should also be added to ensure it is clear when those legislative provisions are triggered. This issue is revisited in chapter 6 where recommended changes to the law on relocation are discussed.
This chapter of the report considers the impact of relocation:
on parents, and
on others (including children who are not the subject of the order, new partners, grandparents and other relatives).
The impact of relocation on children
The impact of relocation on children will vary, depending on the age and personality of the child and the distance of the move. For example, a move within the same suburb may have minimal impact on the child’s schooling, extra-curricula activities and contact with friends and relatives. A move to another state within Australia will mean they have to start attending a new school and make new friends. They may also have to change their extra-curricular activities. If the relocation is to another country, in addition to the changes involved with an interstate move, the child may be faced with learning a new language, learning about a different culture, as well as living in a different climate.
As Family Services Australia put it in their submission:
the issue of relocation of children resulting in significant changes to their living arrangements is complex. It involves not only a possible decrease in the time that a child might spend with a parent, but also the potential for a child to be obliged to learn about a new environment, to establish new social support systems and, sometimes, to change his or her self-view to accommodate new experiences and situations.38
A clear issue raised by the submissions was the effect of the relocation on children’s ability to maintain their cultural connections, particularly for Aboriginal and Torres Strait Islander children. The Aboriginal and Torres Strait Islander Legal Service (Qld South) Ltd outlined that it can be very difficult for a child to maintain connection with their culture after separation. This is due to the cost of travel and the “transitory lifestyle” of some Aboriginal and Torres Strait Islander people.
Cultural connection is not only important for Aboriginal and Torres Strait Islander children. A confidential submission raised the fact that if a proposed international relocation is not allowed by the court, the child will miss out on developing or maintaining their cultural ties with that other country, as well as contact with extended family in that country.
Social science research on the impact of relocation on children
In relocation cases, the court has to decide whether or not to prevent a residence parent from relocating with the child if that relocation would affect the child’s contact with their other parent. The court’s paramount consideration when making this decision is the child’s best interests (section 65E of the Family Law Act). However, determining “best interests” is difficult. There is little research available to assist the court in understanding the impact on a child of its decision either to allow or refuse the relocation.39
Social science controversy in the United States of America
The limited amount of social science research that there is on the impact of relocation generally comes from North America. Particularly useful material has emerged from debates in the Californian Supreme Court by way of amici curiae briefs (which are written submissions handed to the court by an interested person referred to as a “friend of the court”).
The Californian courts receive expert reports to ensure that the latest research involving children and the effects of relocation can be noted in each case to help the court ensure the best interests of the child are protected. While the court recognises that each case is different, the court also recognises that psychological research may be an invaluable tool for parties and the court to use when hearing relocation cases. Some of the different areas of studies that may be significant in relocation cases include
the influence of mothers and fathers on the child’s psychological development; the effect of parental absence; the impact of divorce; the effects of father custody and joint custody; the effects of remarriage; and the impact of relocation on children in intact and divorced families.40
In deciding the case of In re Marriage of Burgess41 an amici curiae brief was provided by Dr Judith Wallerstein and five other health professionals.42 The focus of Wallerstein et al is the relationship of the child with the custodial parent. Wallerstein and Tanke write “all of our work shows the centrality of the well-functioning custodial parent–child relationship as the protective factor during the post-divorce years. When courts intervene in ways that disrupt the child’s relationship with the custodial parent, serious psychological harm may occur to the child as well as to the parent”.43
Wallerstein et al argued that there is no evidence that the amount of time spent with the non-primary carer throughout the child’s developmental years is significantly related to the child’s adjustment.44 The development and adjustment of the child is primarily related to a close and stable relationship with the primary carer.
This may be contrasted with the amici curiae brief by Warshak, Braver, Kelly and Bray et al45 filed in the case of In re Marriage of Lamusga.46 The Warshak et al brief argues that Wallerstein et al’s brief did not take into account the large amount of research that suggests children naturally develop close attachments to both parents and that it is in the child’s best interests for both relationships to be maintained.47
The authors cite a study that concluded that a child’s welfare is not dependent on the frequency of visits by the non-primary carer but the type of contact that is experienced. Therefore, for meaningful involvement in the child’s life the non-primary carer needs to play an active role in the child’s everyday life. However this is unlikely to happen if the child is relocated to a different community.48
In a review of social science research on post-divorce relocation, Waldron notes that the effect of relocation on a child will vary according to the child’s age.49The risk factors for children change as their level of parental attachment shifts and they develop more social bonds outside the home. Other researchers have made similar observations.50 Some submissions received by the Family Law Council cited these studies about the different impacts of relocation on children of different ages and urged against allowing very young children to be separated from a parent for even relatively short periods.51
Australian social science research
The discussion paper posed the following consultation question in relation to Australian social science evidence on the effects of relocation: