There is no such concept as “custody” of children under Australian Family Law. Rather, the law expresses this concept as “parental responsibility”. While the law assumes that both parents share in the parental responsibility of the child, it does not assume that both parents will have equal contact times with the child. The parent with whom a child primarily lives with is called the “resident parent”.
Equal shared responsibility for the child includes making everyday decisions, as well as long term decisions in respect of the child, such as where a child lives, the child’s education and religion, and medical treatments, to name a few. Usually, both parents are able to make these decisions together, and with little conflict. However, when parents cannot agree, the Family Court must step in to decide what is in the child’s best interest.
Losing the ‘resident’ parent status
A common scenario arising from the conflicts of equal shared parental responsibility is when the resident parent wishes to relocate for personal or employment reasons, and involving large distances between the former residence and the new residence, making contact times with the child onerous for the other parent.
In the past, the Court considered whether the relocating parent had compelling reasons to relocate when making orders to allow or bar the parent from relocating with the child. However, since the legislative amendments to the Family Law Act in 1995, the Court’s main focus, although not the sole consideration, is the child’s best interest. The Court looks at various factors when determining whether it is in the best interest of the child to allow a parent to relocate, including the support network that the relocating parent has in place at the new location, the employment opportunities, and of course, the travel time and logistics involved in maintaining sufficient contact times with the child to allow a substantial and significant relationship with each parent. There are too few cases to establish a clear precedent on how the Court will rule in relocation matters with any certainty. However, in a recent case handed down by the Family Court earlier this year, the decision of the Hon. Justice Lloyd Waddy, suggests that the Court may take the view that the relocating parent should be prepared to lose their ‘resident’ parent status.
Impacts on the children’s lives
In this particular case, the mother wished to relocate 260 kms away from the city to the country, to live with her new partner. Although the court does take into consideration a parent’s happiness and freedom of movement, in this case, the imposition of travelling 130 km to and from the drop off and pick up point adversely impacted the children’s lives. The mother was ordered to live within 50 kms of the Sydney CBD to retain her resident parent status, otherwise, the father would become the resident parent of both the children, and the mother would have alternate weekend contact with the children. The judge considered factors such as the advantages to the children’s lives in living in the city as opposed to living in the country.
At the time of writing, the mother is seeking to appeal the decision to the Full Court of the Family Court, and whatever the outcome, the Full Court’s decision will surely influence future courts’ position on maintaining resident parent status in relocation matters.
As this case has shown, the court’s decision as to what is in the best interest of the children can be influenced by many factors, and there is not yet a clear precedent in relocation matters. A case is often decided on its merits, and you should speak to a lawyer regarding the merits of your matter.
Turner Freeman’s family law department
Our lawyers here at Turner Freeman are well qualified to assist you in your family law matter, and we would be pleased to speak with you about any family law matter. Should you wish to discuss your matter confidentially and without obligation, please do not hesitate to contact our office.