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15 June 2018

Going the distance

Family Law
Federal

Asked

Children - Relocation

Can you please advise if there are any court precedents/guidance as to when a relocation application must be made? My client wishes to relocate to a place 2 hours away from where she currently lives - her ex is objecting on the grounds that it's too far for him to travel and doesn't want the child to change school. I appreciate that each case turns on its merits, but I am wondering if the actual distance has ever attracted judicial consideration.

Answered

Thank you for the question.

The issue of distance has attracted judicial consideration, but as you say, each case is decided on its merits and it’s not the only issue which is looked at when determining a relocation. Relevant cases include:

  • Carne & Feldt [2013] FCCA 1851 where the court permitted an interim relocation 100km (1 hour) away. The child was 6 years old and the mother was relocating to live with her new partner, the father of her unborn child. Judge Brown accepted the move might have implications on the quality of the father’s relationship however found that it was not ‘an insuperable barrier’ and suggested that a distance of 100km is a fact of life for rural Australians.
  • Cavanagh & Kennedy [2013] FCCA 345 where the mother unilaterally relocated with the parties’ 7 year old daughter to a place an ‘hour and a half away’ despite an earlier final order providing for equal shared parental responsibility which provided that each ‘parent is restrained from relocating outside the … district unless agreed in writing between the parties’. The court ordered she return.
  • Morgan & Miles [2007] FamCA 1230 where the focus of the appeal was on whether a ‘local’ move of 144 km constituted a relocation. The court stated that the distance should not be ‘the determinative criteria’ and in ‘many cases what is relevant is the consequence of the move or proposed move’. For some the cost of travel will be relevant, while for others it could be the effect on ‘developing attachments’ with other siblings. Conversely there may be little impact if the child is used to living with one parent and having alternate arrangements with the other.

In Morgan & Miles the Court summarised how to approach ‘moves’ under the legislation at [92]:

Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.

As you will see from the above cases, it really does depend on all the circumstances, including what parenting time is in existence before the proposed relocation. If the father seeks the child only on weekends and the mother is proposing to share the driving, then it’s less likely to be a problem. If the child is young and the father sees the child every second day and that won’t be able to continue if the mother relocates, it may pose more of a problem.

Regards

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