By Holly Lynch, Special Counsel
Wanting to relocate after a separation is often a natural response to the breakdown of a relationship and sometimes it is necessary in circumstances where one person may not be able to maintain the lifestyle or living situation they were in prior to the separation.
For LGBTQIA+ parents, there can also be added uncertainty surrounding the custody of a child, and whether one parent is able to relocate with the child.
In the context of family law, “relocation” often refers to a parent proposing to move a child to a location that would significantly affect the other parent’s ability to spend time with the child. It could mean moving interstate, back “home” to a regional area, or overseas.
Does Being a Same-Sex Couple Change the Law?
Same-sex parents are subject to the same legal framework as heterosexual parents under the Family Law Act 1975 (Cth). That said, questions of parentage may arise more frequently in same-sex relationships, particularly for the parent that is not biologically related to the child and if that parent is not recorded on a birth certificate. These things do not mean that the parent in that circumstance is not a parent, it may mean however, that legal advice about establishing parentage should be provided to that parent in conjunction with advice about relocating.
How do we determine if relocating is best for the child?
When parents cannot reach an agreement between them about relocation, it is likely that the Federal Circuit and Family Court of Australia will end up making the decision for the parents, as they move through the Court system. The Court will determine whether the relocation is appropriate by considering what is best for the child. This includes looking at a range of factors, including the benefit of the child maintaining a meaningful relationship with both parents and whether there is a risk of harm to the child with either parent. This also includes considering the child’s emotional, educational and developmental needs, the distance involved and the availability of school and support networks. The Court will carefully consider the practical implications of the move, so it is essential for the parent proposing the move to address the reasons for their proposed relocation and why they say the move is what is best for the child (not simply what is best for them).
Each relocation case is determined on its own facts, and there is no presumption in favour of a biological or non-biological same-sex parent.
THE KEY TAKEAWAY:
Before taking steps to relocate with your child, seek the agreement of the other parent and if you cannot reach agreement with the other parent, consider seeking legal advice about how to commence negotiations.
If you are wanting to relocate with your child or need clarity on your parental rights, it is important to seek legal advice. Book a consultation with one of our experienced family law solicitors at Rafton Family Lawyers to better understand your options.