In A v A: Relocation approach128 the Full Court of the Family Court laid down seven guiding principles that apply generally to relocation cases. These principles were derived from the High Court decision in AMS v AIF and subsequent Full Court decisions.129 Confirming the statement in B and B that relocation cases are not a “special category” of cases, the Full Court chose the description “parenting cases where the proposal of one of the parties involves relocation”.130
The case involved a proposed international move. The mother sought a parenting order permitting the child to relocate with her to Portugal. The trial judge had ordered that the child live with her mother in Sydney. The mother’s appeal was allowed and the matter was remitted for rehearing.131 The reasons why the appeal was allowed will be outlined to show the practical application of the guiding principles.
The Full Court started by outlining two binding principles from AMS v AIF, namely that:
the best interests of the child are the “paramount consideration, but not the sole consideration”, and
a court cannot require the applicant to demonstrate “compelling reasons” for the relocation.132
The third principle is that the court must evaluate the competing proposals presented by the parties and weigh up the advantages and disadvantages of each for the child’s best interests. Fourthly, this should not be done in a way that separates the issue of relocation from that of residence.133 In the case of A v A, the Full Court held that the trial judge focused on the child’s contact with the father in Sydney. He did not compare this with the proposal that the mother relocate to Portugal.134
The fifth principle is that the evidence must be weighed as to how each proposal would hold advantages and disadvantages for the child’s best interests. It follows that, sixthly, the evaluation of the competing proposals is carried out by referring to the relevant sections of the Family Law Act that relate to the best interests of the child – section 60B and the factors in subsection 68F(2).135 About the relationship between these sections, the Full Court held that “the object and principles of s60B provide guidance to a court’s obligation to consider the matters in s68F(2) that arise in the context of the particular case” (this is the seventh principle).136 In A v A the Full Court held that the trial judge’s consideration of section 60B and subsection 68F(2) matters (for example, the child’s wishes) was “inadequate”.137
After discussing the guiding principles outlined above, the Full Court set out a three-step summary of the correct approach to determining a parenting case that involves a proposal to relocate the residence of a child.138 The first step is to identify the relevant competing proposals for future care of the child.
The second step is to explain the advantages and disadvantages of each proposal by examining the factors set out in the Family Law Act (that is, each relevant subsection 68F(2) factor with regard to section 60B). One relevant factor to be weighed will be the “reasons for relocation as they bear upon the child’s best interests”.139 This must be weighed against other factors.
The third step is to explain why one proposal is to be preferred, having regard to the best interests of the child as the “paramount consideration, but not the sole consideration”. No single factor should determine which proposal is to be preferred. As part of this process, the Full Court held that regard must be had to the following issues:
none of the parties bears an onus – in A v A the Full Court considered that the trial judge had erred in requiring the mother to justify the relocation140
the importance of a party’s right to freedom of movement,141 and
matters of weight should be explained – in other words, the court must indicate which of the relevant matters under sections 60B and 68F(2) were of greater significance and how the matters balance out.142
High Court’s decision in U v U and beyond
The most recent High Court consideration of relocation is the 2002 decision of U v U,143 another international relocation case. The mother sought to move to India with her daughter. The Family Court ordered that the child remain in Australia and the High Court dismissed her appeal by a 5-2 majority. The facts of the case were that the parties married in India and moved to Australia where the child was born. The mother wanted to move back to India because she had better employment prospects there, as well as extended family support and friends. Between August 1995 and January 1998 the mother and child had lived in India, during which time the father visited on five occasions and had unrestricted access to his daughter.
So what were the competing proposals for future care of the child? The mother was proposing that she be the residence parent, that she and her daughter would reside in India and the daughter would have contact with her father. The father’s proposal was that the child reside with him in Australia for most of the time and have contact with the mother at certain times, for example, school holidays. His alternative proposal was that the child reside with her mother in the “Sydney/Wollongong area”.144
The final orders made by the trial judge were different to the proposals made by the parties. In the course of cross-examination, the mother had admitted that if she was not permitted to relocate to India with her daughter, she would stay in Australia with her daughter. This was considered to be “an alternative proposal” made by the mother.145
The majority of the High Court held that “the Court is not, on any view, bound by the proposals of the parties”.146 Hayne J explained that:
to confine the inquiry [to the parent’s proposals] would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.147
In a more recent case, it was held that where a trial judge does formulate an alternative proposal, they are required “to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party”.148
In light of the decision in U v U, Watts has argued that there are four proposals which need to be considered in relocation cases:
1. child relocates with residence parent
2. child does not move and there is a change of residence parent (this may be contrasted with the view expressed in B and B that this suggestion would be untenable for most residence parents)
3. the child does not move and the residence parent also stays
4. the child relocates with the residence parent and the contact parent also moves.149
The fourth proposal was not explored at the trial in U v U. Gaudron J (dissenting) stated that the failure to consider the possibility of the father moving to India, “particularly given [his] origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not”.150 Kirby J (also dissenting) considered the burden this imposed on the mother.151
Hayne J suggested that in future cases it must not be assumed that the father cannot relocate because “[i]t is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them”.152 Gleeson CJ, McHugh and Gaudron JJ expressed agreement with Hayne J’s comments.
The decision in U v U has been interpreted by the Full Court of the Family Court as having “ameliorated the somewhat rigid and/or formulaic approach set out in A v A”.153That observation was made in Bolitho and Cohen,154 where the Full Court was satisfied that the trial judge had balanced all the relevant factors and the decision that the children should live with their father in Japan was upheld.155 In interpreting the High Court’s decision in U v U, the Full Court stated:
In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right to freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.156
A reading of other cases since the decision in U v U reveals that an observation made by Kirby J in AMS v AIF still holds true. That is, the facts of every relocation case are “unique” and have to be carefully analysed. Previous judicial decisions are only of assistance to the extent that they promote “a general consistency of approach”.157
Summary of current law
In summary, the “general consistency of approach” that can be drawn from the discussion above about the legislative provisions and case law regarding the best interests of the child prior to the Shared Parental Responsibility Act is as follows.
Relocation cases are not a special category of cases. The Family Law Act does not specifically mention “relocation” and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation”.158
The best interests of the child is the “paramount consideration, but not the sole consideration”. For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the child and the court should explain why a particular proposal is preferred.
The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
It should not be assumed that the non-resident parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.
Immigration status of parties in relocation cases
A matter that was not covered by Council’s discussion paper was how the law takes into account the immigration status of the child, the parents and any other relevant people involved in a relocation case. This was brought to the Council’s attention by the Department of Immigration and Multicultural Affairs (DIMA).
DIMA submitted that cases involving international relocation should be treated separately due to the added complexity of immigration requirements that need to be considered when the courts make decisions relating to custody of children, particularly where one parent wishes to reside in Australia and the other does not. DIMA makes the point that even if the court considers that it would be in the child’s best interests for both parents to remain in Australia, this may not be possible under Australia’s migration laws.
DIMA also submits that when dealing with international relocation cases, the court should have regard to the immigration status of the child, the parents and any other relevant persons. Where a case involves persons who are not Australian citizens, it would assist DIMA if the orders specified which person or persons has the right to decide in which country the child can live.
Council considers that because these matters mainly concern how orders are formulated, they would be best dealt with by an amendment to the courts’ rules, or the bench handbook referred to by judicial officers, as opposed to an amendment to the law. The Council would be happy to raise this with the Family Court of Australia, Federal Magistrates Court and Family Court of Western Australia, with the agreement of DIMA.
The Family Law Council’s terms of reference direct the Council to consider “approaches to the problem of relocation in other jurisdictions”. This chapter provides a summary of the law in the United Kingdom, New Zealand, Canada and selected states in the United States of America. Consideration is also given to the approach in some European jurisdictions.
Some of these jurisdictions have presumptions either in favour of or against relocation. The discussion of overseas laws in this chapter is grouped according to each jurisdiction’s tendency to allow or disallow relocation applications.
Three general approaches to relocation have been ascertained. The first is in favour of relocation. The United Kingdom and the state of Indiana are both examples of this approach. The second approach is more neutral. Decisions are made on a case by case basis, with the emphasis on the best interests of the child in each case. Canada and the state of New York are examples of this approach. The third approach is against relocation, as in the state of Louisiana. New Zealand may also fall into this category, if predictions about the potential impact of its new Care of Children Act 2004 are accurate.
“Pro-relocation” jurisdictions United Kingdom
The United Kingdom’s Children Act 1989 (Children Act) prohibits the removal of a child from the country without the written consent of “every person who has parental responsibility for the child or the leave of the court” (subsection 13(1)).
Relocation decisions are made by reference to the child’s welfare as the paramount consideration, as they are a question “with respect to the upbringing of a child” (which requires the child’s welfare to be the court’s paramount consideration pursuant to subsection 1(1) of the Children Act). A checklist of factors (including the child’s wishes and needs) is provided in subsection 1(3) of the Children Act.
The primary carer must establish that the relocation is reasonable. When making this decision the court may look at career prospects, housing, education, distance, cultural difficulties, the reason for the move, contact arrangements, the child’s bond with the primary carer and the child’s wishes.159 Once the court is satisfied that the relocation is reasonable, the court will grant leave to move unless it can be clearly shown that the relocation would be detrimental to the child’s welfare.160
The leading relocation case in the United Kingdom is Payne v Payne (an international relocation case) in which the court held that refusing an application of a primary carer who has made a reasonable proposal for relocation is likely to be detrimental to the welfare of the child.161 The same approach applies in domestic relocation cases, except that the weighing up of competing interests against relocation will be less stringently applied.162
The court’s rationale for not interfering with the reasonable decision of the primary carer is that the carer is still going to be responsible for the child, and refusal of an application to relocate would result in bitterness which would have an impact of the quality of life the child experiences.163
Whilst the United Kingdom has neither a presumption for or against relocation, in practice it is rare for applications to relocate to be refused.164
United States of America
Family law in the United States of America is a state responsibility, so there are different approaches across the country. All the states start with the general rule that the best interests of the child are paramount.165 However, in some states there is a presumption in favour of allowing a custodial parent to relocate. Indiana is one such state.
The Indiana courts assess an application for relocation on the basis that it may require a change in custody arrangements and the application must be heard with the court mindful of its child custody modification statute.166 In other words, if the primary carer wishes to relocate the court must consider granting custody to the other parent.
The child custody modification statute provides that the court cannot change existing custody arrangements unless there is a substantial and continuing change in circumstances that would justify the court modifying the custody arrangements.167 The burden of proof to establish a substantial change of circumstances is on the non-primary carer.
An out of state move is not of itself sufficient to constitute a substantial change in circumstances that would justify the court’s conclusion that the primary carer’s continued custody is unreasonable.168
New York State, United States of America
In New York State, there is neither a presumption for nor against relocation. The courts decide each relocation case on its own merits and do not rely on any preconceived assumptions.169
The courts’ primary focus is on the best interests of the child and it may weigh up numerous factors to determine what the best interests of the child are in each case. Some of the factors the court may consider include:170
the impact of the move on the relationship of the child and the non-primary carer
the motives behind the move
the benefits and harms the child may experience from the change in circumstances
the economic, emotional and educational opportunities afforded by the move
the negative impact which will result due to continued hostility between the parents, and
the possibility and feasibility of a parallel move by the non-primary carer as an alternative to restricting the primary carer’s mobility.
The list is not exhaustive and the court may add to the factors that are or are not to be considered to ensure each relocation case is decided on its own merits. As the court focuses on a case by case approach, there is no guidance or stringent requirements placed on the weight of each factor the court takes into consideration.171 The emphasis of the court is on “minimising the parents’ discomfort and maximising the child’s prospect of a stable, comfortable and happy life”.172
Canada is another jurisdiction that adopts a neutral stance on relocation. The courts’ approach is again based on the best interests of the child. Section 16 of the Divorce Act 1985 (Divorce Act) lists a number of factors the court considers when making an order.
The leading relocation case is Goertz v Gordon: Women’s Legal Education and Action Fund.173This case involved a successful application for a residence mother to relocate from Canada to Australia. The Supreme Court held that presumptions are not relevant to making relocation decisions. McLachlin J, for the majority, wrote that a “presumption in favour of the custodial parent has the potential to impair the inquiry into the best interests of the child. This inquiry should not be undertaken with a mind set that defaults in favour of a pre ordained outcome absent persuasion to the contrary”.174
The court must make a fresh inquiry as to the best interests of the child and not base its decision on the findings of the preliminary custody hearing to ensure that all material changes in the circumstances are taken into account.175 Usually motives for moving will not be an issue considered by the courts, but occasionally the motive will reflect adversely on the parent’s ability to fulfil the child’s best interests. For example, when the sole motive of a parent to relocate is to prevent the other parent from having contact with the child, the primary carer is not showing an ability to meet the needs and interests of the child.176
The court must weigh up the benefit of the child staying with the primary carer in a new location against the advantage of having continuous contact with the non primary carer, extended family and the community. The interests and rights of the parents are to be respected, but are not the focus of the inquiry.177 The ultimate decision of the court in each case is what is the best interests of the child taking into account all the relevant circumstances.178
Louisiana, United States of America
Louisiana has passed legislation based on the American Academy of Matrimonial Lawyers’ Model Relocation Act. The Model Relocation Act was not intended to be a uniform Act and it offers alternative options that each state may adopt to maintain their own jurisdictional policies.179 The three alternatives concern the burden of proof in relocation cases.180
The relocating person has the burden of proof that the proposed relocation is made in good faith and in the best interest of the child.
The non-relocating person has the burden of proof that the objection to the proposed relocation is made in good faith and that relocation is not in the best interest of the child.
The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the non-relocating person to show that the proposed relocation is not in the best interest of the child.
The Louisiana legislature has chosen to adopt “Alternative A” from the Model Relocation Act and placed the burden of proof on the relocating parent to prove that the relocation is being made in good faith and in the best interests of the child.181
The Louisiana statute only applies where the relocation is out of the state or more than 150 miles (241.5km) from the previous residence.182 The court may not consider whether the person proposing relocation will move without the child if their application is refused, or whether the person opposing relocation will also relocate if the relocation application is allowed.183
In making a decision regarding relocation, the statute requires the court to consider a long list of factors,184 including the child’s age and needs, and the nature, quality, extent of involvement and duration of the child’s relationship with both the parent proposing to relocate and with the non-relocating parent, siblings and other significant persons in the child’s life.
The law in New Zealand is in somewhat of a state of flux, as the new Care of Children Act 2004 (Care of Children Act) replaced the Guardianship Act 1968 on 1 July 2005.
The approach of the New Zealand courts to relocation cases prior to the Care of Children Act had been that the courts would not start with any presupposed assumptions, as in D v S it was held that a “presumptive or a priori weighing is inconsistent with the wide all-factor child-centred approach required under New Zealand law”.185 The best interests of the child was the paramount consideration under the Guardianship Act. In Stadniczenko the Court of Appeal stated that “the only principle which governs is that of the best interests of the child. That test cannot be implemented by the devising of a code of substantive rules or of procedural or evidential rules embodying presumptions and onuses”.186
The welfare of the child is also the paramount consideration pursuant to section 4 of the Care of Children Act. Section 5 of that Act provides some principles relevant to the child’s welfare and best interests as follows:
(a) the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing;
(b) there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents);
(c) the child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child’s parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child;
(d) relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing;
(e) the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whanau, hapu, or iwi, or by other persons);
(f) the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
It is not known how, exactly, these principles will influence relocation decisions. For example, paragraph (b) could be a factor that works in favour of, or against, relocation. Judge Boshier, Principal Judge of the Family Court of New Zealand, has observed that “the move might bring the child closer to their family…or put the child in an environment more conducive to matters such as cultural participation”.187
Judge Boshier outlines some reasons why the Care of Children Act may not lead to a new approach to relocation cases and reasons why it might. In concluding, he states:
The new Act clearly intends that having a relationship with both parents be considered as generally in the best interests of children. As parenting orders include this principle as a fundamental constituent, it may become difficult for a parent to convince the Court that it is in the welfare of the child to be removed from the parameters of the order…In general, where both parents can provide for the welfare of the child, the Act suggests that the Court should conclude that this is in the child’s best interests, and therefore not allow relocation.188
If Judge Boshier’s predictions about the potential impact of the Care of Children Act are correct, it might be possible to describe New Zealand law as generally not favouring relocation. However, it is too soon to draw any conclusions about this.