Circumstances Mother Able to Relocate Child in the Context of De Facto Relationships
20/06/2016
Circumstances Mother Able to Relocate Child in the Context of De Facto Relationships
When a relationship ends, particularly in the case of de facto couples, one of the most important considerations often involves the welfare of any children involved. If a mother wishes to relocate with her child, especially in circumstances where there is no clear legal framework in place regarding parental rights, it can lead to complex legal issues. The Family Law Act 1975 in Australia provides clarity on these matters, but it’s essential to understand how different situations can influence the decision-making process.
Legal Framework for Relocation and De Facto Relationships
In Australia, a de facto relationship is legally recognised when two people live together as a couple but are not married. The Family Law Act 1975 outlines specific circumstances under which a de facto relationship is deemed to exist, including if the couple lives together on a “genuine domestic basis.” This term can be interpreted through several factors, including the couple’s duration of living together, their financial dependency, shared children, and the nature of the relationship.
When a mother in a de facto relationship wishes to relocate with her child, it becomes crucial to establish the parental rights and responsibilities shared between both parents. If both parents are listed on the child’s birth certificate, they both have rights to make decisions regarding the child’s care and relocation. However, if the de facto relationship has ended and the mother wants to move, the decision can become more complicated.
Factors Influencing the Court’s Decision
When a parent, particularly the mother, seeks to relocate with the child, courts assess the best interests of the child, which is the primary factor in family law decisions. Several factors are taken into account:
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The Child’s Relationship with Both Parents: Courts consider how the relocation would affect the child’s relationship with the non-relocating parent. A mother seeking to move with the child may need to demonstrate how the move won’t significantly impact the child’s connection to their other parent.
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The Child’s Welfare: The child’s overall wellbeing is a crucial consideration. This includes their physical, emotional, and psychological needs, as well as the potential for the child to adapt to a new environment, school, or community. Section 60CA sets out the best interests of the child as the paramount consideration in parenting cases, and section 60CC provide factors the court must consider in determining what is in the child’s best interests, including the child’s relationship with both parents, the child’s views, and the need for a meaningful relationship with both parents.
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Parental Consent: If the non-relocating parent agrees to the move, the court is more likely to approve the relocation. However, if the other parent disagrees, a legal dispute may arise, requiring the court to intervene and determine the best course of action for the child.
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The Reason for the Relocation: The mother’s reasons for relocating also play a significant role. Whether it’s for a job opportunity, a change in lifestyle, or to be closer to family, the court evaluates whether the relocation is in the best interest of the child or motivated by personal reasons that could disrupt the child’s life.
What Happens if Parents Cannot Agree?
In situations where parents, whether in a de facto relationship or following a separation, cannot come to an agreement about relocating with a child, the matter may go to court. The Family Court of Australia will make an order based on the child’s best interests. This decision will be influenced by various factors, including the stability of the child’s living environment and the ability to maintain meaningful relationships with both parents.
Legal Protections for the Mother in Relocation Cases
If the mother is in a registered de facto relationship, she may have clearer legal grounds for seeking a relocation, as the relationship would be legally recognised. This recognition can simplify matters such as parenting arrangements and the division of assets. However, if the relationship is not registered, the legal complexities might increase, particularly if there is no clear agreement between the parents regarding custodial responsibilities.
Additionally, if there is a cohabitation agreement or binding financial agreement (BFA) in place, it may address the issue of relocation and other potential disputes. In such cases, the mother’s right to relocate with the child could be specified in the agreement, providing more legal certainty in the event of a separation.
Relocating a child after the breakdown of a de facto relationship in Australia is a legal matter that requires careful consideration. Both parents’ rights and the child’s best interests must be taken into account. Whether or not a mother is able to relocate with her child depends on the specifics of the de facto relationship, any legal agreements in place, and the court’s evaluation of the child’s welfare. It is important for any parent in this situation to seek professional legal advice to navigate the complexities of family law and ensure that both their rights and the best interests of the child are protected.