Current at June 2023
Families migrate to Australia from overseas for a myriad of reasons – employment, education, etc. Many migrant families have the same primary motivation to move to a new country – a better life for themselves and their children. However, one of the risks in migration is that more often than not, families have limited financial and emotional support from extended family members.
Some foreign-born families may follow a traditional household structure where the husband works outside the home and the wife stays home to look after children. In some cases, the wife has limited English skills and may rely on the husband to manage their affairs (financial and non-financial).
When families separate within that structure, the wife may find it difficult to obtain employment and remain the primary carer of the children. Many consider returning to their country of origin.
A primary motivation for foreign-born parents to return to their country of origin is often having very little or no family support locally. Relocating allows them to return home or be closer to family members. There may also be an opportunity to gain meaningful employment (which tends to be particularly relevant for the parent who has limited English skills or non-recognised qualifications) and a chance for the child to strengthen their cultural heritage.
Relocation is a particularly difficult subject for the Family Court.
“Relocation is not in itself listed as a separate category under the Family Law Act, but rather it forms part of what the Court looks at to determine what is in the best interests of the child.”
Separation and divorce are already a significant risk factor for children in terms of their long-term emotional well-being, especially if they are very young. It can become more of an issue where relocation is proposed. There are particular risks concerning secure attachments to their parents when children are very young.
The leading authority on relocation is A v A: Relocation Approach1 which sets out (in effect) what the Court can and cannot do when dealing with relocation applications.
Lawyers must be prepared to “reality test” a parent’s proposal—what is the impact of the move on the relationship between the child and the other parent, what are the proposed contact arrangements following relocation, is the proposal actually realistic? And sometimes, to give them the hard truth; international relocation cases are never clear cut as:
“someone always loses whether it is the parent who is left behind if the application is successful or if the application is rejected—the one that is denied the opportunity to start a new life”.2
1 (2000) FLC 93-935.
2 Family and Community Affairs Committee, House of Representatives, Every picture tells a story: report on the inquiry into child custody arrangements
in the event of family separation. Canberra: The Parliament of the Commonwealth of Australia, 2003.
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Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.
O’Sullivan Davies has practitioners experienced in assisting couples with international relocation. More information about our services can be found at our About Us page here.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
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