The Family Law Courts have the power to prevent or allow a custodial parent to unilaterally relocate with the children of a relationship, from the town or district in which they have been living. These orders, either permitting or denying relocation, are known as “ relocation orders ”.
On an interim basis, the court will make an order refusing relocation, and forcing the return of the custodial parent with the children if necessary, until the issue can be fully investigated and determined by the court (or the parents can reach an agreement).
This temporary restriction on the ability of the custodial parent to relocate with the children without the consent of the other parent is enforced for many reasons, with the overriding considerations being to:
This approach was confirmed and explained by Her Honour Federal Magistrate Boland in the decision of Morgan & Miles (2007) FLC 93-343, where Her Honour said:
"The circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
It appears to me that the very difficult issues in cases involving a relocation, … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis."
“In deciding whether to make a particular parenting order about a child, a court must regard the best interests of the child as the paramount consideration”.
This issue was highlighted by the recent decision of the Family Court of Australia in Iris & Cohen (No 2)  FamCAFC 12120 .
The fac, in that case, were as follows:
The Family Court decided that at this early stage of the proceedings it was not appropriate to require the mother and child to return to Townsville, particularly given the physical, emotional and financial circumstances that would confront them in doing so.
The Court explained that consideration had to be giving to the fact that this was not a case where the child was having a relationship with the father and was unilaterally being moved away from a settled environment.
There was no evidence to indicate that the mother was not properly caring for the child.
The Court decided that in this case the mother should be allowed to remain with the child in Wagga Wagga for the time being and that an Independent Children’s Lawyer is appointed to represent the child, investigate the circumstances and assist the court in determining whether relocation is in the child’s best interests.
The court decided it would be best to wait for an expert's report before making interim parenting orders for the relocation of the mother and the child to Townsville.
The court may very well order that the mother relocate back to Townsville at a further interim hearing or even at the final hearing. However, this may become less likely as time moves on and the mother settles with her child in the new environment.
This case does, however, demonstrate the importance the court places on matters such as: