Australia - Child Relocation

Reviewing Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006 leads to great concern that international (and domestic) relocation cases in Australia might become extremely difficult to win.

The Act creates a presumption that it is in a child's best interests for each parent to have equal shared parental responsibility. It requires the presumption to be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.

The statutory preference for shared parental responsibility will often conflict with the reasonable desire of a parent whose marriage is over to “go home” to her country of origin or to make a fresh start.

Assume that Australian Jack and American Jill meet on vacation in Fiji. Jack persuades Jill to join him in his place on the beach in Queensland. Jill has a child there but Jack doesn’t come home much and Jill desperately misses her family and friends back home in the States. She gets a job but it does not pay much while Jack goes on unemployment.

Jill’s Australian lawyer advises her that Jack has full rights to shared parental responsibility over the baby. Jill says that if she goes home to the U.S. she will be able to get a better job and will have the support of family and friends. Her lawyer explains that the fact Jack is not working actually helps his case because he has plenty of time to spend with the baby. While an Australian court has the power to decide that it is in the best interests of the child that her mother be allowed to relocate with her to the U.S., the statutory presumption in favor of joint parental responsibility could well tip the balance in favor of blocking relocation except in extreme cases.

Has the Australian legislation gone too far?

Will the Australian courts redress the balance?

In B & B [2006] FamCA 1207 (15 November 2006) the Full Court of the Family Court of Australia in Brisbane may have started that process. It upheld a decision allowing a mother to relocate with her children from one part of Queensland to another, over the strong opposition of the father. In its decision, the Court stressed that in relocation cases regard should be had not only to the best interests of the child but also to the right to freedom of movement of a parent. It described the relationship between the two concepts as “a delicate interplay of concepts.”

How that interplay works itself out in Australian relocation cases remains to be seen.