In part 2 of our three-part series on Relocation in Family Law, we explore the concept of “best interests” and the issue of freedom of movement.
Last time, we examined Relocation under the Family Law Act 1975 (Cth).
Best Interests
In relocation cases, the child’s “best interests” are the “paramount consideration” (s 65CA):
- ‘Interests’ describes issues relevant to the child’s “care, welfare or development” (s 4(1)).
- ‘Best interests’ is however not defined. It is a “deliberately open-ended” concept that is not compatible with “scientific demonstrations or conclusive proof” (W & R [2006] FamCA 25 at [54]).
- Best interests vary over time, location or circumstance, even when applied to a particular child.
- Courts recognise the importance of child-parent relationships in best interests.
The Interests of Other Parties
The child’s best interests are not the “sole” or “only” consideration, particularly because the interests of the child and other parties will intertwine (AMS v AIF (1999) 199 CLR 160, 207). The child’s welfare will be shaped by their parents’ socio-economic, psychological and cultural prospects.
These interests may also be relevant (s 4(1)):
- parents
- step-parents
- half-siblings
- grandparents
- uncles
- aunts
- nephews
- nieces
- cousins
Relocation -v- Freedom of Movement
Section 92 of the Australian Constitution states that:
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
This constitutional word-salad guarantees the right of citizens to move freely within Australia (Cole v Whitfield (1945) 70 CLR 1, 17).
Article 13 of the Universal Declaration of Human Rights (UDHR) internationalises this right:
Everyone has the right to leave any country … and to return to his country.
The Family Courts must somehow balance the best interests of the child with the free movement of their parents.
Next time, we examine the Section 60B objectives, Section 60CC factors and Section 65DAA considerations that courts use to assess the merits of parties’ relocation proposals.
Need Assistance?
If you need advice in relation to Relocation or another Family Law matter, Martin Bullock Lawyers can help. Call Greg or Jacqueline on (02) 9687 9322.
References
Family Court of Australia, ‘Relocation and Travel’ (Webpage, 3 May 2016) <www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting/relocation-and-travel/>
Family Law Council, Relocation: A report to the Attorney-General (May 2006). <https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Relocation%20report.pdf>
Parkinson, Patrick, Australian Family Law in Context: Commentary and Materials (Lawbook Co., 7th ed, 2019)
Parkinson, Patrick, ‘Freedom of movement in an era of shared parenting: The differences in judicial approaches to relocation’ (2008) 36(2) Federal Law Review 145