The Need for Reality Testing in Relocation Cases

Abstract:     
This article reports on the world’s first prospective longitudinal study of relocation disputes, otherwise known as ‘mobility’ or ‘moving away’ cases. Interviews were conducted with 80 parents who have been involved in relocation disputes in Australia. The majority were proposed relocations to different states in Australia. In ten cases the proposed relocation was overseas. In all but two cases the applicant for relocation was the mother. Fifty-nine per cent of the cases required a judicial determination. This compares with about 13% of family law cases in Australia generally that are not resolved without a trial being commenced. This indicates how difficult these cases are to settle. The costs of the legal dispute caused severe hardship to parents, with 11 parents losing their homes. In a few cases where mothers were allowed to move, they either decided not to do so or returned within a year afterwards. Six fathers have so far followed the mother. In some cases, non-resident parents have lost contact with their children following the relocation or have had significant difficulties maintaining the level of contact envisioned by the court. In other cases, there have been issues about the burden of travel on the children.

The research indicates the importance of reality testing in relocation disputes both by lawyers in advising their clients, and by judges. The realities that need to be considered are the legal costs both in applying for relocation and opposing it, particularly if the case does not settle early, the cost and burden of travel if the relocation takes place, particularly with young children, and whether the proposed visitation plan can and will be maintained.

Number of Pages in PDF File: 35

Keywords: family law, relocation, parents, children, custody, freedom of movement

JEL Classification: K10, K30

Accepted Paper Series