Habitual residency in impact upon relocation matters
What will happen to my kids if me or my ex wants to move overseas?
In the event of an attempted relocation by a co-parent, one consideration you should be aware of is that of habitual residency in relocation matters. Are you currently going through a separation where one of you wants to relocate to another country? If there are children involved, this adds yet another set of questions to what is in their best interests.
What is habitual residency?
A habitual residency refers to the place where any given child has lived or grown up. In family law, the generally court assumes that it is in the best interests of the child to remain in their habitual residence, unless shown otherwise. However, this is only the starting point, and can change with the presence of other risks to their wellbeing and safety. The concept of habitual residency in relocation matters requires some further consideration from the Family Court.
Factors influencing habitual residency – who is the primary caregiver?
One such example is the decision in Secretary, Department of Family and Community Services and Walkenhorst. In this case, a mother with two children relocated back to Australia from New Zealand. The children’s father subsequently launched an international child abduction claim. The father alleged that the children were being “wrongfully detained” in Australia by their mother. The Court subsequently determined that the primary care-giver was in fact the mother. As a result of this, the children’s habitual residence changed once hers did. Therefore, the most influential factor in this case was who the children’s primary care-giver was.
Where it becomes more tricky is when it is not so clear who the primary care giver is. Even so, a court must always take all the other relevant factors of the Family Law Act into consideration. This is why getting thorough legal advice for your situation is so important. Situations involving habitual residency in relocation matters can be especially complex.