Marriage breakdown and relocating children from the non residential parent

Written on the 27 February 2015 by Macmillans Waller Fry - Solicitors Maitland

Hamish & Brighton [2014] FamCAFC 242 (17 December 2014)

The break up of a marriage or defacto relationship is often a painful and taxing event both emotionally and practically and this is inevitably worsened when there are children involved.

In today's industrial and corporate world there is a tendency for people to relocate their residence from state to state either " chasing" work or , in the case of employment by a contractor to mining and industry, being transferred to new projects interstate or within the same state as the residence but some distance from the place where the residence of the family had endured.

In some circumstances a party to a failed relationship may have formed a new relationship with a partner who resides interstate or remote from the former relationship home.

After the break up where children are involved the non residential parent will usually enjoy a regime of spending time with the children on a regular basis and this becomes central to and important in the lives of the children and the parent, the continuance of this is seen by the law as important, indeed essential, in the development of the children.

The law recognises that the child will benefit from each parent spending substantial and meaningful time with the children and in all circumstances decisions of the court are predicated upon the best interests of the children as being paramount, that is to say, the overwhelmingly important issue.

The issue of the movement of a parent from one jurisdiction to another is often referred to as " relocation". The court recognises that a person has the right to move and relocate and becomes involved only when the anticipated relocation with children of the relationship will effect the time that is spent by the other parent with the children.

There is no rule for or against moving children and each case is examined on its own facts.

In the case of Hamish and Brighton the court delivered a judgment on the 17 December 2014 after and appeal from the decision of the court in Perth.

Briefly the facts were that a mother of two children aged 9 and 4 sought to relocate from Perth to Adelaide. Reasons given included contact with her family, the cost of living being less in Adelaide and the opportunity to purchase a home being better for her in Adelaide than in Perth.

The father opposed the move based on the fact that it was not practicable should the mother re-partner in South Australia, as her vacating her house and his use of her car would no longer be tenable, which may result in further litigation.

Also he contended that he could not easily find work in SA and that the only resources oriented company in the town to which the mother chose to relocate did not offer work for him in his qualified areas. Finally, the father said that the drama classes and surf lifesaving enjoyed by the children would not be available in the chosen town.

Initially the trial Judge refused the leave to relocate the children and the matter was taken on appeal by the mother.

The mother argues that the trial judge had failed to consider the issue of the reasonable practicality of the move and that the judge had failed to consider the following matters relating to her desire to relocate:


41. Further, in Ground 1 the mother asserts that his Honour failed to weigh up the relative proposals of each of the parties, and it can be seen that when the matters raised by the mother going to reasonable practicability are exposed, they were not addressed by his Honour at all, and certainly not in the context of s 65DAA(2)(d). The mother set out the various matters that his Honour should have considered in complying with s 65DAA(5) in paragraph 18 of her written summary or argument as follows:

  • The mother's [unchallenged] evidence of situational anxiety and depression, and consequent effects on her parenting capacity;
  • The mother's evidence of much more affordable housing, and lower living costs, in [South Australia];
  • The mother's [unchallenged] evidence that it would be extremely difficult if not impossible for her to retrain and resume her [health professional] profession in Perth, but this was eminently feasible in [South Australia];
  • The mother's evidence that she would be forced to access day care facilities in Perth, a prospect which concerned her greatly, whereas she could access unlimited, free, best quality child-minding from family members in [South Australia];
  • [His Honour's] finding in relation to "the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent", which was a positive finding in respect of the mother's proposal;
  • The mother's evidence that she would not only have more time with her children in [South Australia], but would have greater opportunities for "one on one" time with each of her children;
  • [His Honour's] own finding that the mother's proposal would not involve financial difficulty for the father, nor would there be any problems with communication between the parents over issues involving the children."


As a result of a " legal technicality" concerning the appeal grounds and the original decision the matter was not decided by the Court on appeal but was returned to the Family Court of Western Australia for re-hearing.

There is no rule that prevents or forbids a parent who has the residency of children from moving but in the absence of agreement between the parties a careful observation and consideration of the grounds ( or wishes of the party seeking to move), the impact on the non residential parent and the best interests of the children will be considered.

If you plan to move and relocate children from the non residential parent we recommend that you seek our advice at the earliest opportunity so that a disruption to the children and a costly process of moving is not wasted.

It must be remembered that a court can order that the children remain in, or be returned to, the place from which they moved if a consideration of all of the issues does not show that a move is in the best interests of the children.

Author: Macmillans Waller Fry - Solicitors Maitland




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