When it comes to family law in Australia, the interim relocation of children without the other parent’s consent is a complex issue that requires a careful consideration of the best interests of the child by the Court. If you’re navigating a situation where relocation of children and/or recovery orders are in question, understanding the legal principles and processes behind these decisions is crucial.
What Does the Law Say About Interim Relocation?
The leading case of Morgan v Miles highlights that Interim Hearings are not the ideal setting for determining whether a child should be relocated without one person’s consent, unless there is evidence of risk of harm or family violence to a child or a party to the proceeding. The Court aims to avoid making significant changes to a child’s living arrangements without comprehensive and tested evidence, as these decisions can have long-lasting implications on each parents’ relationship with the child.
However, there are exceptions where the interim relocation of children has been permitted in certain cases where evidence of unique circumstances or risk of harm was presented to the Court.
Balancing Rights: Child’s Best Interests vs. Freedom of Movement
In relocation matters, the Courts must balance the child’s right to maintain a relationship with each parent with the relocating parent’s constitutional right to freedom of movement. Key factors that will be considered by the Court when making these decisions include, but are not limited to:*
• Allegations of family violence or risk of harm to a party or child, particularly those supported by objective or third-party evidence. For example, Apprehended Violence Orders (AVOs), police or child protection reports, medical records or reports, photographs, text messages and so on;
• The emotional, practical and financial support available to the relocating parent in both the proposed and original locations of the child; and
• The potential impact on the child’s ability to maintain meaningful relationships with both parents, particularly in comparison with the time and communication the child was spending with each parent prior to the child’s relocation.
Cases Where Interim Relocation Was Permitted
Successful cases often involve evidence-backed reasons for relocation, such as:
1. Domestic Violence Concerns:
In Ridley & Radford [2016], the court dismissed a father’s recovery order application, allowing the mother to relocate due to substantiated allegations of domestic and family violence.
2. Emotional Well-being of the Parent:
In Massell & Moreno [2017], the court highlighted the importance of preserving the primary parent’s emotional well-being and the direct, flow on effect that will have in ensuring the children’s welfare.
3. Support Networks:
Relocation to areas with improved practical, emotional and financial support to the relocating parent’s networks was given significant weight in decisions like Sterry & Sterry [2017].
Recovery Orders and Their Role
Applications for recovery orders often accompany interim relocation disputes. Courts carefully evaluate whether recovery is in the child’s best interests, considering:
• The impact of returning the child to their previous location on both parties and the child; and
• Evidence of changed circumstances and/or risk of harm.
In Shamon & Shamon (No. 2) [2022], for example, the court dismissed a father’s application for a recovery order after considering allegations of family violence and the children’s expressed views.
Key Takeaways for Parents
• Evidence Matters: The more objective evidence you have (e.g. third-party records that support that statements you make), the stronger your case for pursuing or defending an interim relocation.
• Children’s Best Interests Come First: Every case is unique, and court will prioritise the child’s welfare above all else.
• Relocation Is the Exception, Not the Rule: Interim relocation without consent is rare, with successful cases being in the minority. You should always attempt to resolve the dispute with the other parent outside of Court first, such as by attending mediation, where it is safe to do so.
Need Expert Guidance?
If you’re dealing with complex parenting or relocation matters, our family lawyers in Newcastle and Maitland are here to help. At The Family Law Co., we specialise in navigating high-conflict parenting disputes, ensuring the best outcomes for you and your children.
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📧 hello@familylawco.com.au
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Disclaimer:
This post is for informational purposes only and does not constitute legal advice. For tailored guidance, contact one of our family law solicitors near you.
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