Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation

Abstract

In 2006, the Australian Parliament made major amendments to the Family Law Act 1975 to encourage a greater level of shared parenting, and to give greater emphasis to the importance of children maintaining a relationship with both parents in the absence of violence or abuse. There are major differences between trial judges in Australia on how to apply the new laws to the problem of parental relocation - where the primary caregiver wants to move a long way from the other. The central problem is determining how much importance should be given to a parent's freedom of movement given this greater emphasis on the involvement of both parents. There are stark differences in the policy and approach of different trial judges, which have yet to be resolved by an authoritative and carefully reasoned decision of an appellate court.

This article examines these substantial differences in view between judges on this issue since the 2006 amendments, and proposes a way forward based upon revisiting the leading judgment of Kirby J in the High Courtof Australia in AMS v AIF (1999).

Keywords: Family law, Parents, Children, Relocation, Freedom of movement, human rights, shared parenting

JEL Classification: K10, K30, J12, J13