Last Updated 13 June 2016

Relocation matters

An application by a parent wishing to relocate to another country or within Australia is one that is frequently before the courts for determination. These cases are often complex, and there is no rule of thumb that can be easily applied to predict the outcome of such an application.

The approach for Australian courts is ultimately to determine the matter on the basis that the best interests of the child are paramount but not the sole consideration, and determine which of the competing proposals are in the child’s best interests (see the case A v A: Relocation Approach (2000) FLC 93–035).

The court cannot determine a case by simply deciding with whom the child should live and then deciding whether the relocation should be allowed. Instead, the courts are required to evaluate each of the competing proposals and consider all of the matters set out in the Family Law Act 1975 (Cth) (Family Law Act) in ss 60B and 60CC, and then indicate which of those matters in the particular case has greater significance and where the balance lies.

The genuineness of the reasons for relocating and the advantages to that parent and their family are clearly factors that will need to be weighed with all other evidence. If the relocation is motivated by a desire of one parent to exclude the other from the child’s life, then the application is likely to fail. The right of a parent’s freedom of movement is also one factor to be considered, and a court cannot make orders that prevent a parent from moving. A court can, however, make orders preventing the removal of a child from a particular area, and the practical effect of such an order may well be that the parent also does not move.

It is clear that the decision-making pathway set out in the Family Law Act must be applied to all applications for parenting orders (including relocation), and a determination made by the court must be based on the evidence before it and the best interests of the child being the paramount consideration. The proposals of the parties are to be considered as part of such a determination (see Goode v Goode [2006] FamCA 1346; McCall v Clark [2009] FamCAFC 92 and MRR v GR [2010] HCA 4).

Restraining orders

Sections 68B and 114 of the Family Law Act provide the court with the power to make orders or grant injunctions as it considers appropriate for the welfare of a child.

The Family Court may issue a restraining order that, for example, may restrain a person from entering or remaining in the child’s residence, or the place where a child is employed or educated, or restrain a person from remaining with the person who is entitled to the residence of the child. Injunctive relief may also be sought to secure the sole use and occupation of the former home if there is a dispute about who should live there. Applications for injunctions are complex, and clear evidence to support the making of the injunction will be necessary.

Location and recovery of children

Any person who is concerned with the welfare, care and development of a child may take action to locate and recover a child. The following orders are available to the court in assisting to locate and return a child who has been removed from their usual home:

  • a location order
  • a Commonwealth information order
  • a recovery order.

A location order

The Family Court has the power to make an order directing a person to supply information about the location of a child (s 67M Family Law Act). The order may be applied for by:

  • a person with whom, under a parenting order, the child lives, spends time or communicates with
  • a person who, under a parenting order, has parental responsibility for the child
  • a grandparent or any other person concerned with the care, welfare and development of a child (s 67K Family Law Act).

The best interests of the child remain the paramount consideration for the court when deciding whether to make a location order (s 67L Family Law Act). A location order applies for a period of 12 months, or longer if the court considers it appropriate (s 67M(4) Family Law Act).

Any person required to provide information under the order must do so, regardless of any other law which might apply. The information is provided to the court and only distributed further in limited circumstances (s 67P Family Law Act). This sort of order is appropriate for parties who believe that the child is still in Australia.

A Commonwealth information order

A Commonwealth information order is a location order directed to a Commonwealth body. The most usual type of Commonwealth information order is made against Centrelink (s 67N Family Law Act).

Recovery order

The Family Court has the power to make a recovery order, which requires the return of the child and authorises police to stop and search vehicles and enter premises for that purpose (s 67U Family Law Act). The order may be applied for by:

  • a person with whom, under a parenting order, the child lives, spends time or communicates with
  • a person who, under a parenting order, has parental responsibility for the child
  • a grandparent or any other person concerned with the care, welfare and development of a child (s 67T Family Law Act).

A recovery order directs that the child be returned to the applicant or to some other person.

The court has further powers to make directions for the day-to-day care of the child pending the child’s return. It can also prohibit further removal of the child and authorise the arrest of a person who has previously removed the child.

If a recovery order is made without notice to the other party, a further interim hearing, of which the respondent must be informed, will follow shortly (usually within a few days) after the initial hearing.

Changing a child’s name

The parent with whom the child lives (i.e. a child under 18 years) does not have the right to change either the given name or surname of the child without the consent of the other parent. Consideration of the sections of the Family Law Act or parenting orders concerning parental responsibility and major long-term issues is important if a change of a child’s name is proposed. Any determination will involve a consideration of what orders should be made in the best interests of the child.

Sometimes a parent changes a child’s name (usually the surname) without the consent of the other parent, by simply calling the child by the new name. The desire to change the surname of a child often occurs in cases where a parent separated from their spouse, commences to live in a de facto relationship, remarries or changes their own name.

The Full Court of the Family Court held that a parent will not be prevented from changing a child’s surname unless the court is satisfied that:

The court also held that, in deciding whether there should be any change of surname, a court should consider the following matters:

  • the best interests of the child, which is of paramount importance
  • the short and long-term effects of any change to the child’s surname
  • any embarrassment likely to be experienced by the child if their name is different from that of the parent with whom the child resides
  • any confusion of identity that may arise for the child if their name is changed or is not changed
  • the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage
  • the effect of frequent or random changes of name.

The following matters should also be considered (see Beach & Slemmler (1979) FLC 90–692):

  • the advantages, both in the short-term and the long-term, which will accrue to the child if the change of name is permitted
  • the contact that the father has had and is likely to have in the future with the child
  • the degree of identification that the child has now with the father
  • the degree of identification that the child has now with the mother and stepfather
  • the degree of identification that the child will have with a child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored
  • the desire of the father that the original name be restored.

The court has also indicated that a further option may be available, namely a hyphenated name (see Mahoney & McKenzie (1993) FLC 92–408). The court held that:

  • the court attached no significance to the manner of the registration, which was the husband’s surname and did not find a particular attachment or identification with either parent’s surnames
  • a number of benefits could be expected to arise from the use of a hyphenated surname for the child, because:
    • the child had an ongoing relationship with both of their parents, although they did not live together
    • the hyphenated surname might facilitate the recognition by others of the child circumstances and the ease with which the child had accepted such circumstances
    • the use of the hyphenated surname offered the child a middle road in times of rapidly changing social attitudes.

The court had some reservations about the utility of a general adoption of hyphenated surnames but said that any choices that might need to be made were best left to the child in his mature years.

The issue of a child’s surname is a matter that falls within general parental responsibilities. When a child’s surname is a contentious issue, it may be appropriate to seek a specific issues order preventing or seeking the change of a child’s surname. Evidence to support the need for either order will need to be provided by an affidavit.

Foreign residence orders

Australian courts are required to recognise and give effect to registered overseas residence orders.

The orders that may be registered in Australia are those of a prescribed overseas jurisdiction, which includes New Zealand, Papua New Guinea and most states of the United States of America.

The procedure for registering overseas residence orders is contained in reg 23 of the Family Law Regulations 1984 (Cth).

Once an overseas residence order is registered, it has the same force and effect as if it were an order under the Family Law Act. No court in Australia that is aware of the order can then exercise jurisdiction for the residence of or contact to the child concerned, unless:

  • every person who has rights of residence or contact under the foreign order consents
  • substantial grounds exist for believing that the welfare of the child would be adversely affected if the court does not exercise its jurisdiction.

The Family Court cannot make an order affecting the residence of or contact to a child who is subject of an overseas residence order unless it is satisfied that:

  • the welfare of the child is likely to be adversely affected if the order is not made
  • there has been such a change in the circumstances of the child since the making of the overseas residence order that the order ought to be made (s 70J(2) Family Law Act) (see Klassen & Brooks (1986) FLC 91–765).