"CHILD’S BEST INTEREST IS CONSIDERED FIRST"
03 Apr 2012
When a Separated Parent Wants To Leave Town
Lisa O’Neill is special counsel in family law at local firm, Murdoch Lawyers. This
week Lisa looks at the situation of a separated parent who wants to move with their
children to another town.
Best Interests Paramount
The overarching consideration for Orders in relation to children is to determine
what is in their best interests.
The Family Law Act sets out that when determining what is in a child’s best interests,
the Court must consider two main things, being:
- The benefit to the child of having a meaningful relationship with both parents; and
- Whether there is a need to protect the child from harm.
In a situation where one parents wants to move away with the child, the Court will
need to look at the practical difficulty and expense of the child spending time
with the parent who is left behind.
The Decision of the High Court
This issue of “relocation” was considered by the High Court of Australia in the
widely reported case of MRR and GR.
The High Court made it clear that basic practical matters need to be looked at before
making any orders. The effect of the proposal on the child needs to be considered
before orders are made. In that case, the family had moved from Sydney to a regional
Queensland mining town for the father’s work. When the relationship broke down,
the mother wanted to move back to Sydney with the child. The mother had great difficulty
in finding alternate accommodation in the town. The waiting lists were long and
her only option was to live in a caravan park with shared facilities for herself
and the child. The mother had difficulty finding employment and she wanted to move
back to Sydney where she had full-time work available and family support.
In hearing the mother’s case, the High Court stated that any decision about the
parenting arrangements must be on the basis that the arrangements are reasonably
practical and in the best interests of the child. They decided that a situation
where the mother was unemployed and living in a caravan park was neither practical
nor in the best interest of the child.
Other cases have stated that when considering the best interests of the children
in the circumstances of a proposal by one parent to move, the rights of the child
cannot be properly considered without looking at the circumstances of the parents.
There is no universal rule that parents have to live close to each other.
As with all decisions made by Courts about the parenting of children, the child’s
best interests are paramount.
The safeguards contained the Family Law Act ensure that Courts look at the over-all
situation of the child and weigh up the most practical and beneficial outcome in
all the circumstances, having regard to the right of the child to have a meaningful
relationship with both parents.
Do I Need Legal Advice?
Because parenting issues and family separation can be emotional and stressful, it
is a good idea to seek legal advice so you know your options and to help you focus
on the best outcome.
Lisa O’Neill
Murdoch Lawyers
lisa@murdochs.com.au
telephone 4616 9898