Relocation and Family Law – Do I have a right to move?

Relocation and Family Law – Do I have a right to move?

In Australia, people have a right to freedom of movement – to decide where they will live within the various States and Territories. It has become increasingly common for people to move away and embark on a ‘fresh start’ after a relationship has ended. But whilst parents have a right to choose where they live, the Family Law Act empowers the Courts to make decisions as to where children may live in proximity to each of their parents.

Under the Family Law Act, the presumption is that both parents have shared parental responsibility for their children. That is, both parents have an equal say in all major long term decisions for their children including where the children live, where they go to school and what medical treatment they should have.

In some circumstances, one parent may make a unilateral decision to relocate with the child without prior consultation with the other parent or despite the objection of the other parent. If such case were to arise, the non-relocating parent could make an Application to the Court seeking that the child remain living within reasonable proximity to them.

The matter of Quigley v Quigley[1] is a recent decision originating from the Federal Circuit Court of Australia in Newcastle. An Application was brought by the Mother who sought Orders to relocate with the parties’ 9 year old child.

Her Honour, Judge Terry, considered in detail the primary considerations[2] of the Court in determining what outcome was in the child’s best interests. In summary, Her Honour made Orders in favour of the Mother’s application to relocate as a result of the following:

1.    The Mother had been the child’s primary care giver since birth;

2.   The Mother provided a warm and nurturing relationship for the child as opposed to only that of a functional parent; and

3.   By relocating, the Mother would improve her financial circumstances which would in turn benefit the child.

Before making a decision to relocate with your children, you should speak with your former partner and try to reach an agreement regarding future parenting arrangements for your children. Relocation in family law matters can be quite complex, so you should also seek appropriate legal advice. Of course all families are unique and if you have any questions regarding your parenting matters you should seek independent legal advice regarding the facts that are relevant in your matter.

[1] [2016] FCCA 463

[2] Section 60CC of the Family Law Act 1975 (Cth)