In the recent Family Court judgment, W and R,189 Carmody J provided a succinct summary of the different European approaches to relocation. His analysis was informed by two articles on international relocation by Anna Worwood.190 Carmody J noted:
Separated or divorced parents who wish to relocate from France with their child(ren) require leave of the Court as do the English counterparts. The criteria is welfare-based and similar to the welfare factors taken into account in England.
Shared residence orders are commonplace in France with the role of each parent generally being considered to be of equal importance. However, like England, the emerging trend is for leave to be granted more often than not where it is sought by the primary carer.
German courts determine relocation applications on the basis of the best interests of the child being the first and paramount consideration. The outcome depends on whether the proposed change has a net benefit for the child. There is no general rule or presumption in favour or against the relocating parent.
In Spain the child’s interests are usually separately represented and the wishes of children aged 12 or over are highly influential. Both parents, whether married or not, have joint parental authority and responsibility over and for their children under the Spanish civil code. The Courts act on best interests considerations and apparently normally “…authorise a reasonable proposal by the mother provided that there will be generous contact between the child and the father”.
Swedish judges are prone to refuse permission to relocate a child in favour of maintaining a stable living environment and existing levels of contact with the absent parent [footnotes omitted].191
So to summarise, France and Spain could be described as “pro-relocation”, Germany could be described as “neutral” and Sweden could be described as “anti-relocation”. It appears, therefore, that a uniform approach to relocation is not discernible amongst the civil law countries either.
So far, this report has considered what relocation is, what its effect is on children, parents and others, what form current relocation law takes and what approaches to relocation are adopted overseas. The report now concludes with a discussion of whether the law on relocation in Australia should be changed and, if so, three possible ways the law might be amended. These are by introducing a legal presumption, by using the House of Representatives Standing Committee on Legal and Constitutional Affairs’ (the LACA Committee) recommendation or by inserting guidelines in some other form.
The Family Law Council’s discussion paper invited respondents to consider the following questions about possible amendments to the Family Law Act.
It is clear that a full understanding of the law on relocation cannot be gained from reading the Family Law Act alone. In your submission, please consider whether the Family Law Act should be amended toprovide specific criteria for making relocation decisions. In considering this broad question, please also consider commenting on the following consequential questions:
Whether relocation cases should become a special category of cases that require separate treatment (contrary to the approach that has been adopted by the High Court and the Full Court of the Family Court), and if so, why?
Which of the criteria should be mandatory and which should be relevant considerations? Are there any factors that should not be taken into account?
In answering these questions, you may wish to take into account the material in the rest of the discussion paper, in particular the proposed reforms outlined in part 4.
A number of submissions expressed the view that it was premature to be considering changes to the Family Law Act in relation to relocation, given the amendments in the Shared Parental Responsibility Act. For example, the Chief Justice of the Family Court of Australia stated that:
arguably the legislative environment in which relocation cases are determined will be significantly altered once the Family Law Amendment (Shared Parental Responsibility) Bill 2006 comes into effect. It may be prudent to assess the changes to Part VII of the Family Law Act 1975 before a decision is made whether or not there should be specific provisions inserted in the Act to govern relocation cases.192
The Queensland Law Society believes the amendments to the law “will significantly impact on the approach taken to relocation matters which may be different to the approach suggested in the High Court cases on relocation issues. It may be more prudent to adopt a wait and see attitude until the new Shared Parental Responsibility Act has had time to be assimilated into law”. Far North Fathers believes that the amendments contained in the Shared Parental Responsibility Act are sufficient to deal with relocation cases.
The Castan Centre for Human Rights Law suggested that changes at this stage would be premature. Their submission supports the adoption of a “wait and see approach”.193 The Law Society of New South Wales also said there was no need for legislative amendment at this time, but “depending upon the effect of the current amendments on decisions in this area, this issue may need to be revisited”.194
There were a number of submissions that expressed concern about treating relocation as a special category of cases. For example, Relationships Australia worried that “an amendment or restatement of the law to deal specifically with relocation cases might distract the court from having proper regard to the paramount principle of the best interests of the child”.195 National Legal Aid is also concerned about treating relocation cases separately. It believes that the common law is the most appropriate mechanism for providing judicial guidance due to its flexibility, and that attempting to adapt the Act would be like trying to “pin jelly to a wall”.196 The Department of Family and Community Services and Indigenous Affairs, the ACT Department of Education and Training and the Association of Children’s Welfare Agencies are also opposed to treating relocation cases as a special category.
Other respondents believed that relocation cases should form a special category and have specific legislative treatment. For example, Ms Donna Cooper argues that “relocation is a distinct legal issue in family law and has not been recognised as such in the legislation”.197 Mr John Bottoms agrees that relocation cases should become a special category requiring separate treatment.198
The Murray Mallee Community Legal Service is of the opinion that “it is easier for our clients to both access and understand the law if it is contained in legislation rather than case law. It is unrealistic to expect many lay people to have the skills to find and extract the principles developed in the case law and to understand them”.199 Similarly, Women’s Legal Services Australia believes that legislative guidelines would be helpful, especially as guidelines assist people negotiating ‘in the shadow of the law’ to determine the relevant principles.200
Council is persuaded that relocation cases do form a special category of cases and at the moment it is very difficult for users of the family law system to understand the law. Therefore it would be helpful if the Family Law Act provided further guidance. The question then becomes what type of legislative provision should be inserted?
Before considering this question, the report will discuss whether Indigenous relocation should form a separate special category of relocation cases.
Indigenous children and relocation
The impact of relocation on Indigenous children was discussed in chapter 3 of the report. Some submissions took the view that specific provisions should be added to deal with Indigenous relocation. The National Network of Indigenous Women’s Legal Services, for example, would like to see “separate treatment” criteria for Indigenous children introduced into Australia’s family law, similar to the approach outlined in section 5 of New Zealand’s Care of Children Act 2004,201so that Indigenous values, principles and family connections are protected. Paragraph (b) provides for continuity in the child’s care and in his or her relationships with their family, family group, whanau, hapu or iwi. Paragraph (d) provides that relationships between a child and his/her family, family group, whanau, hapu or iwi should be preserved and strengthened, with members encouraged to participate in the child’s care, development and upbringing. Paragraph (f) provides that the child’s identity (including his or her culture, language and religion) should be preserved and strengthened.
A number of submissions made reference to section 5 of the New Zealand Act.202 The Aboriginal and Torres Strait Islander Legal Service (Qld South) Limited also advocated specific criteria for Indigenous relocation. It suggested that the “placement principles” used by child safety authorities in Queensland in relation to safeguarding Aboriginal and Torres Strait Islander children’s contact with their communities should be incorporated into the Family Law Act.
The Aboriginal Legal Service of Western Australia submit that there should be “a presumption that an Aboriginal or Torres Strait Islander child should maintain a connection with his or her culture” and that this is “not the same as a presumption in favour of residence going to the parent who shares that culture”.203
In December 2004 the Family Law Council prepared a report to the Attorney General titled Recognition of traditional Aboriginal and Torres Strait Islander child rearing practices. Response to Recommendation 22: Pathways Report, Out of the Maze.204 In that report, Council made a number of recommendations to improve the way family law takes into account the rights of Aboriginal and Torres Strait Islander children to enjoy their Aboriginal or Torres Strait Islander culture.
As a result of the Council’s recommendations, there are a number of amendments contained in the Shared Parental Responsibility Act towards this end. The amendments to Part VII of the Family Law Act direct the court to consider the kinship obligations and child rearing practices of Aboriginal and Torres Strait Islander culture, including by making this a principle of Part VII and an additional factor that the court must consider when determining what is in a child’s best interests. There is also an amendment introducing an evidence provision to assist the court in being informed about culture and kinship systems.
In light of these proposals (which apply in relocation cases), Council does not think any further amendments to the Family Law Act are required for the particular circumstances of Indigenous children to be taken into account in relocation matters.
Should Australia have a legal presumption for or against relocation?
Considering the varying approaches to presumptions adopted in overseas jurisdictions, as highlighted in the previous chapter, the discussion paper posed the following consultation question in relation to introducing a legal presumption in Australia.
Do you think that the Family Law Act should provide presumptions either for or against relocation of children with a residence parent, creating a legal onus on the other party to displace the presumption?
A spectrum of opinions were received in response to this question, ranging from those who believe there should be a presumption in favour of the residence parent relocating with the child, to those who believe there should be a presumption against the residence parent relocating, to those who believe there should be no presumptions at all so that each matter is treated on a case by case basis.
Submissions in favour of a presumption
The Shared Parenting Council of Australia believes a presumption against relocation of the residence parent would ensure children maintain a meaningful relationship with both parents. They advocate placing a legal onus on the residence parent to displace the presumption, but for mediation to be attempted first, with the aim of formulating a “relocation plan within the parenting plan that considers the child’s interest in maintaining the existing level of contact with both parents whilst treating the parents’ interests equally”.205
Other submissions which preferred a presumption against relocation were Ms Donna Cooper (who thinks there should be a presumption against relocation by either the contact or residence parent),206 Mr John Bottoms, Mrs Kay Hull MP (who argues for a presumption against relocation of very young children, based on attachment theory reasoning), and Mr Colin Anderson (who believes the party wishing to relocate should “shoulder the burden of proof in the matter”).
Whilst not advocating a presumption as such, Lone Fathers’ Association NT Inc recommend that “relocation of children to distant places that separates them from well established surroundings that are not solely or primarily for the reasons of the children should meet strong and strict justification criteria”.207
Finally, Family Services Australia believes there should be a presumption in favour of children, rather than either parent. This is because such a presumption “would focus on the child’s needs and interests rather than those of either parent, clarifying that relocation issues must consider what will be best for the child in deciding whether relocation might or might not occur”.208
Submissions opposing presumptions
National Legal Aid does not support having a presumption. Whilst the greater certainty that may result from a presumption would be attractive, National Legal Aid believes that a case by case approach delivers the most appropriate outcomes because it allows the court to properly assess the unique circumstances of each family.
Other submissions which agreed that there should be no presumptions at all included the Department of Family and Community Services and Indigenous Affairs, the Department of Immigration and Multicultural Affairs, the Castan Centre for Human Rights Law, the Association of Children’s Welfare Agencies (which perceives presumptions as “dangerous”), the Human Rights and Equal Opportunity Commission and Relationships Australia (both of which caution that presumptions may shift the focus away from the paramountcy principle), the ACT Department of Education and Training, Relationships Australia, Women’s Legal Services Australia, the Murray Mallee Community Legal Service and the Law Society of New South Wales.
These submissions emphasised the need for relocation cases to be considered on a case by case basis, to take into account the individual circumstances of the parties and children involved. As the Castan Centre for Human Rights Law put it, “it is the nature of families and familial relationships which demand that a one size fits all solution for relocation cases is inappropriate and if imposed is unlikely to resolve the issues they raise”.209 National Legal Aid commented that “even though this [case-by-case] approach may result in less certainty for our clients, we believe it delivers the most appropriate outcomes”.210
Council has reached the view that a presumption is not an appropriate way for the law to deal with relocation cases. A presumption would be a very blunt legal instrument for dealing with the complexities involved in such cases. These complexities are well illustrated by the relocation cases summarised in chapter 4 of this report. As National Legal Aid put it, “the case law from the past decade demonstrates that relocation cases are too complex for a ‘one size fits all’ approach”.211
Council is persuaded by the submissions that prefer a case by case analysis of relocation matters, as this is the only way to ensure the best interests of the child remain paramount. As Justice McLachlin wrote in Goertz v Gordon:212
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.
There are three further arguments against the introduction of a presumption. Firstly, if a presumption was introduced into the Family Law Act, it would have to be either in favour of or against relocation. Respondents to the discussion paper who want a presumption one way are unlikely to prefer a presumption going the other way to no presumptions at all. For example, the Shared Parenting Council submits that there should be a presumption against relocation. They also specifically state that the “law should not provide a presumption for relocation with a residence parent”.213
Secondly, Council considers that if a presumption were to be introduced, it would have to apply to both residence and non-resident parents.
Thirdly, maintaining a case by case approach to relocation decisions will mean that Australian law is in line with the majority of common law countries, namely, the United Kingdom, Canada, New Zealand and some States of the United States of America. The Australian courts have also so far “eschewed” the use of presumptions in relocation cases.214
Council recommends against inserting a presumption in the Family Law Act to deal with relocation cases.
Recommendation of the LACA Committee
In August 2005 the LACA Committee made the following recommendation in response to the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005.
The Committee recommends an additional provision be included in the Family Law Act 1975 (the Act) that should a parent wish to change the residence of a child in such a way as to substantially affect the child’s ability to either:
reside regularly with the other parent and extended family; or
spend time regularly with the other parent and other relatives,
the court must be satisfied on reasonable grounds that such relocation is in the best interests of the child.215
The Government response to recommendation 8 requested that the Family Law Council give particular consideration to this recommendation as part of the inquiry into relocation. The Government intends to consider recommendation 8 further in light of Council’s advice.216
Respondents to the discussion paper were invited to comment on this proposed provision.
Do you have any comments on the Committee’s recommendation?
Responses to this question were mixed. The ACT Department of Education and Training and Centacare Sydney supported the recommendation, although Centacare thought the words “of a child” should be deleted so that the provision would encompass cases where the non-resident parent is wishing to relocate. Dawn House Women and Children’s Shelter supported the recommendation.
The Murray Mallee Community Legal Service was somewhat supportive of the recommendation. It agreed that there is a need for a specific relocation provision in the Family Law Act but it does not agree with the LACA Committee’s formulation.
The Castan Centre for Human Rights Law does not believe the LACA Committee’s recommended provision should be included in the Act. It believes that “reasonable grounds” equates to “compelling reasons”, which the court has rejected. Women’s Legal Services Australia are also opposed to this provision, as it is unclear what “on reasonable grounds” means.217
The ACT Law Society opposes the provision on the basis that it would go against the High Court’s approach of treating the best interests of the child as “the paramount consideration, but not the sole consideration”.218
Other submissions queried whether the inclusion of the provision would add anything to the current law and thought it was unnecessary.219 The Chief Justice of the Family Court of Australia noted that it appears that the proposal would not “necessarily direct the Court’s inquiry in a way that is markedly different from its present approach”.220
Council agrees with the LACA Committee that there should be specific provisions in the Family Law Act to assist the court in making relocation decisions. Council is persuaded by the arguments in the submissions that suggest that the LACA recommendation does not give sufficient guidance. Council’s preferred alternative to the LACA recommendation is suggested below.
As noted above, Council has reached the conclusion that specific relocation provisions should be inserted into the Family Law Act. This is supported by many of the submissions. However, there was no agreement about what form any legislative guidelines for making relocation decisions should take. In addition to submissions in favour of a presumption or the LACA Committee’s recommendation, approaches ranged from enacting the guidelines in A v A,221 to using section 5 of New Zealand’s Care of Children Act 2004 as a model,222 to having principles from the UN Convention on the Rights of the Child guide decision-making.223
Some submissions suggested using the English guidelines set out in Payne v Payne,224 including the Women’s Legal Services Australia, the ACT Law Society and a confidential submission.
Women’s Legal Services Australia argue in favour of extra guidelines in cases involving family violence, as follows.
In our view, the guidelines should emphasise that, in cases where there has been family violence, it is likely to be in the best interests of the child for the resident parent to be able to relocate a safe distance from the perpetrator. The United States National Council of Juvenile and Family Court Judges’ Family Violence Model State Code provides a model that could be adapted for this purpose. The Code provides for a rebuttable presumption that it is in the best interests of the child to reside with the parent who is not the perpetrator of violence in a location of that person’s choice, within or outside the state.
The ACT Women’s Legal Service supported the Women’s Legal Services Australia submission and provided Council with some statistics about relocation matters they have dealt with. A survey of cases they dealt with in 2005 found that 20% of clients moved to Canberra because of domestic violence issues. In two examples provided, the women had fled to Canberra with their two children after a history of family violence.
Council has come to the conclusion that the principles in the Family Law Act 1975 (as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006) should continue to apply in relocation cases. That is, the best interests of the child should remain the paramount consideration. The factors in section 60CC will then be considered by the court in determining what is in a child’s best interests. There was almost universal agreement in the submissions that the best interests of the child must remain the paramount consideration in relocation decision-making.225
This does not mean that there is no scope for providing further legislative guidance for relocation decision-making. Council considers that there is merit in outlining some additional considerations that may have specific relevance to relocation cases. Such a framework would assist practitioners to advise their clients about what factors the court will consider, as well as being of assistance to unrepresented litigants.
This would not be inconsistent with a case by case analysis according to the best interests of the child. As Yaeger observes, “although relocation issues need to be determined case by case, specific factors for determining the standard will at least give some predictability and allow for preparation”.226 The Chief Justice of the Family Court of Australia notes that “both Canada and New Zealand favour the use of guidelines in combination with a pure ‘best interests’ test”.227
Therefore, Council recommends that a provision along the following lines be inserted in the Family Law Act.
A) Where there is a dispute concerning a change of where a child lives in such a way as to substantially affect the child’s ability to live with or spend time with a parent or other person who is significant to the child’s care, welfare and development, the court must:
(1) Consider the different proposals and details of where and with whom a child should live, including:
(a) What alternatives there are to the proposed relocation;
(b) Whether it is reasonable and practicable for the person opposing the application to move to be closer to the child if the relocation were to be permitted; and
(c) Whether the person who is opposing the relocation is willing and able to assume primary caring responsibility for the child if the person proposing to relocate chooses to do so without taking the child.
(2) Consider which parenting orders are in the child’s best interests having regard to the objects contained in section 60B and all relevant factors listed in section 60CC, and:
(a) Whether given the age and developmental level of the child, the child’s relocation would interfere with the child’s ability to form strong attachments with both parents;
(b) If a party were to relocate:
(i) What arrangements, consistent with the need to protect the child from physical or psychological harm, can be made to ensure that the child maintains as meaningful a relationship with both parents and people who are significant to the child’s care, welfare and development as is possible in the circumstances;
(ii) How the increased costs involved for the child to spend time with or communicate with a parent or people who are significant to the child’s care, welfare and development should be allocated;
(c) The effect on the child of the emotional and mental state of either party if their proposals are not accepted.
(B) The court may also consider the reasons the parent wishes to move away and any other relevant considerations.
Council’s proposed provision is in addition to the provisions in the Shared Parental Responsibility Act dealing with parenting orders. Council has attempted to ensure the provision will be consistent with the intention of the government’s reforms. Whilst drawing on the objects and wording in the Shared Parental Responsibility Act, the Council has not departed from the principles expressed in the decided cases on relocation. The common law has evolved over time as the courts have grappled with the complex issues raised by the different cases that have come before them. The common law will now develop in light of the amendments in the Shared Parental Responsibility Act.
The intention of Council’s provision is to ensure that in relocation cases, the Court has the extra information it needs. This will also help parties and their lawyers (if they are represented) to prepare for reaching agreement, or going to court to litigate a relocation matter.
Explanation of the provision
The preamble to this provision explains the types of cases to which it applies. This takes into account that most submissions agreed with Council’s proposed definition of relocation which was centred upon a change to existing arrangements (this was discussed in chapter 2). That is, a change that impacts on the child’s ability to live with or spend time with a parent or other person. However, because a trigger for the application of the proposed provision is described in the preamble, a separate definition of the term “relocation” is not required.
The preamble does not limit the provision to cases where a move substantially affects the child’s continuing to reside with or to spend time frequently with a parent or other person who is significant to the child’s care, welfare and development. Rather, the provision will apply even if the child is not currently spending time with one parent, but may have the ability to. If, for example, a very young baby lives with his or her mother and has never seen the father, then if the mother proposes to move, the father could still rely on the provisions in bringing an application for a parenting order. This is because the proposed move may impact upon his ability to spend time with his child. This is consistent with the provisions in the Shared Parental Responsibility Act which aim to ensure children have a meaningful relationship with both parents.
Subsection (1) of the provision is consistent with the process currently applied to deciding relocation cases, because the parties will have to present their proposals. It is easier for people to understand the law if it is spelt out in legislation, rather than complex judicial decisions which build on previous decisions as described in chapter 4 of this report.
Presentation of the proposals is a logical starting point for relocation decision-making. There are generally four possible proposals, which were outlined in paragraph 4.47. These are:
1. child relocates with residence parent
2. child does not move and there is a change of residence parent
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.228
Not every proposal is likely to be put forward in every case. For example, if the person opposing the application has children from a later relationship it may not be possible for them to move to where the other parent is proposing to relocate. Therefore, this proposal would not be presented. Some relocations to lower cost housing areas, for example, could be avoided by more generous financial provision from the parent with greater financial resources. In appropriate cases, one proposal might be along these lines.
Council does not believe that the legislation should limit the type of proposals parties may present to the court, as the parties will know what is most likely to work in their circumstances and should be encouraged to come up with creative proposals. However, subsection (1) requires the parties to turn their minds to all possibilities that may suit their individual circumstances, including whether the person opposing the relocation is willing and able to be primary carer if the other parent chooses to relocate in any event. This gives the court a better appreciation of the available options without imposing a presumption one way or the other.
The provision maintains the best interests of the child as the paramount consideration. Those best interests are to be determined by reference to the factors listed in section 60CC and the objects contained in section 60B as for any other parenting order case and subsection (2) refers specifically to these sections. The factors listed in Council’s proposed subsection (2) are additional considerations that apply particularly to relocation cases, but are only looked at once the factors in section 60CC have been addressed.
Paragraph (2)(a) reflects the concern expressed in the submission by Mrs Kay Hull MP that there should be a presumption against relocation of very young children, based on attachment theory reasoning. This is consistent with social science research by Kelly and Lamb,229 who identify four stages of attachment in children aged under three.
Infants in the first stage, between birth and two months, have “very primitive memories and cognitive processes…During this phase…parents quickly become strangers to their infants if regular contact and caregiving are not possible”.230
During the next phase, between two and seven months, infants begin to recognise their parents. Kelly and Lamb write that “infants in this phase will not generally protest separations from their parents, but require frequent enough contact with their parents for attachment formation to continue”.231
The third phase, from around 7 to 24 months, is known as the “attachment phase”. Infants “seek to be near and to interact with their preferred caregivers”.232 Extended separations during this phase cause the child anxiety. In addition, Kelly and Lamb write that “the inability to refresh memory and the absence of regular contact slowly erode relationships, such that, over time, non-moving parents become strangers”.233
Finally, children between two and three years have increased cognitive and language abilities that allow them “to tolerate longer separations from their parents without undue stress. However, their very primitive sense of time…[inhibits] their ability to understand and cope with lengthy separations”.234 Kelly and Lamb argue that separating parents from children at this age may severely erode their relationship “unless there is broad and meaningful interaction at least once every month”.235
It is important to note, however, that children may reach particular attachment milestones at different rates and the focus of this paragraph is the child’s attachments (rather than drawing lines based on particular ages). Council believes any inquiry into the age and developmental level of the child must depend on the particular child in question.
Paragraph (2)(b) directs the court to consider the arrangements in the event that a party is permitted to relocate. Again, this will mean that parties turn their minds to the consequences of their proposals when preparing to reach agreement or go to court. As this report shows, relocation can have an impact on a child’s relationship with a parent, grandparents and other relatives. There may be arrangements that the parties can present to the court to ensure the child continues to be able to spend as much time with parents and people significant to their care, welfare and development as is possible in the circumstances.
Proposed arrangements must be consistent with the object in section 60B of protecting the child from physical or psychological harm. Council believes that it is useful to specifically refer to this object here, in light of the submissions received about some relocations being motivated by the need to escape violence and/or abuse.
The cost of maintaining a meaningful relationship after a child’s move may be significant, particularly if the move is international. This is a matter on which the law is currently silent, but may be very important indeed to the parties. The child support legislation allows high costs of contact to justify a change of assessment of child support, but for many in the population the costs of contact given a proposed relocation may far exceed the child support liability, making this an inadequate remedy at best.
Whilst most courts would currently make orders about how these costs will be shared, under the government’s reforms more parties may reach agreement without going to court. Council’s provision is therefore aimed at making the cost element explicit so that the parties consider how the costs might be shared. They may be able to reach agreement about how airfares, bus tickets, petrol, phone calls, letters, email and so on will be paid for. If the matter does go to court, the parties’ evidence on the likely costs will be useful for the court.
Paragraph (2)(c) concerns the impact on the child of the emotional and mental state of either party if their proposals are not accepted. For example, a parent who wishes to move may be unhappy if the court prevents this move. Similarly, a parent who opposes the move may be unhappy if the child is allowed to move. Either parent’s feelings of anger and disappointment may have an impact on the child.
Council support’s Kirby J’s comments on the way a parent’s welfare impacts on the welfare of the child. In U v U he observed that:
The economic, cultural and psychological welfare of the parents is also to be considered, because they are human beings and citizens too and because it is accepted that their welfare impacts upon the welfare of the child.236
Finally, the reasons a parent wishes to move is a factor which may be relevant, but is not something Council considers the court must consider. Therefore, Council proposes that a separate paragraph B should state that the court may consider these reasons.
This is consistent with the current weighting given to freedom of movement. In interpreting the High Court’s decision in U v U, the Full Court of the Family Court recently 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.237
Council has added the words “any other relevant considerations” so that the parties have an opportunity to raise concerns specific to their cases. This might include the interests of siblings, grandparents and other relatives, or their employment circumstances.
Council has reached this formulation following considerable thought and consultation on the issue of relocation. Council therefore commends it to the Government.