Understanding the Relocation of Children Law 2024: Key Changes and Impacts
It was anticipated that with the changes to the Family Law Act that came into effect on 6 May 2024, being the removal of the presumption of equal shared parental responsibility and alleged simplification of the factors that the Court takes into account when considering the best interest of children, that there may be a shift in the way that the Federal Circuit and Family Court of Australia deals with relocation of children to different towns, states or countries.
When the presumption of equal shared parental responsibility came into effect in 2006, Court decisions such as Goode & Goode created a pathway that Judges were required to follow. That pathway made the unilateral relocation of children became quite difficult. Judges were reluctant to relocate children to a place that meant they would no longer have a meaningful relationship with both parents.
There was a general expectation that with the May 2024 changes, there may be a reversal in part to the old days where the person with the primary care of the children had the final say as to where the children should reside. Many exclaimed “What is old is new again”.
In what is the first significant relocation decision following the amendments on 6 May 2024, His Honour Judge Glass of Division 2 of the Federal Circuit and Family Court of Australia in the case of Shams and Alkaios2 [2024] Fed C Fam C2F 620, was asked to decide whether two (2) boys aged 11 and 8 should live with their father in Victoria or with their mother in Queensland. In that case the father deposed that the parties separated in October 2016, (the mother said February 2017). The father said he spent 5 to 6 nights a fortnight, with the children mother saying the father spent no substantial time with the children for the first 12 months.
His Honour found in that case that the father had about 40% of the care of the children from February 2017 until January 2018.
From January 2018 there was a consensual arrangement for equal time arrangement in place until the mother unilaterally relocated to Queensland with the children in January 2023.
Interim Orders were made on 15 February 2023 for the children to return to Melbourne, that there be a resumption of equal time in the event that the mother also returned to live in Melbourne. She did not return.
His Honour dealt with allegations of physical violence by both the father and the mother. His Honour noted that despite the allegations of violence that there was no change in the equal care arrangements for a period of approximately four (4) years.
The impact of the mother’s decision not to return to Victoria with the children in February 2023 is evident in the reasons for judgment. His Honour said from one of the child’s comments to the child consultant, “Mum is now married to Mr J and she cares more about him than me.” The child consultant recommended that the children remain living with the father in Melbourne, and that the children spend as much time with their mother in Queensland as possible including during holidays and at least one weekend each school term.
His Honour made Orders that the parties make joint decisions in relation to all major long term issues in relation to the children. “In the event that the mother remains living interstate the children live with the father and spend time with the mother and in the event that the mother returns to live in Melbourne that the children live with the parties in a week on week off equal time arrangement.”
This result may not have been different prior to the parenting changes to the Act that came into effect on 6 May 2024. Time will tell whether cases where there has not been an equal time arrangement in place, for a significant period prior to relocation, will result in relocations initiated by a parent with primary care will be more successful. The writer suspects that will come to pass and what was old will be new again.
Anecdotally since the changes in May the writer is noticing an increase in the reluctance of a parent to concede giving the other parent sole decision making responsibility. At this early stage, after the amendments, there appears to be an environment, where litigation on issues regarding decision making and time with children will increase.
Time will tell how this plays out in the Court.
As I write this article the amendments to property aspects of the Family Law Act are being introduced to parliament. These amendments consider the conduct of parties including family violence, gambling and waste in property adjustments. Many commentors opine that we are seeing the reintroduction of fault into the Family Law Act. There seems to be some validity to that view but this is a topic for another day.