Are We There Yet? An Analysis of Relocation Judgments in Light of Changes to the Family Law Act

Abstract:     
We live in a society marked both by high rates of relationship breakdowns and geographical mobility. Judges and federal magistrates are therefore often placed in the untenable position of having to determine questions that have the potential to place a parent’s right to freedom of movement against the best interests of children, who in many cases are too young to adequately express their view on the matter. Given that the 1995 amendments may have impacted on relocation decisions, we were interested in looking at what further impact the 2006 changes might effectuate. Some have presumed the 2006 amendments would heavily impinge upon the primary care giver’s right to relocate. Given the statutory changes outlined further below in which the child’s right to have a relationship with both parents was given greater emphasis we predicted that such an effect was indeed likely. To test the prediction we chose 50 judgments at random from the Family Court website/AUSTLII. Fifteen of the cases were heard in the Family Court of Australia, 29 at Federal Magistrates Courts and six in the Family Court of Western Australia. The current paper does not explore the vast majority whose journey follows the non-litigious path described by Dewar and Parker. Indeed, we are neither claiming nor aiming to produce a comprehensive overview of the nature of relocation cases that occur and acknowledge the limitations of any findings due to the small sample size. Any results must be regarded as preliminary.

Keywords: breakdowns, parent, relationship, relocation

Accepted Paper Series