There are a whole host of reasons why a parent may be considering relocating with children post-separation: to be closer to family and friends, for a new job or partner, or maybe just for a fresh start. However, as all parents know, once we have children we’re no longer as free as a bird and setting up a new life is not as straightforward as it may have been pre-kids.
Permission from the other parent
You must generally gain permission from the other parent to relocate the residence of a child. But what constitutes relocation? How far is too far? Would moving 1-2 hours away require permission? Unfortunately there are no set guidelines on this and each case needs to be looked at individually. However, a move interstate or internationally will certainly be classed as a relocation. If you do relocate the residence of a child without permission from the other parent, and they then file an urgent application with the court, it is possible that the court will make an order for the return of the child to the original location. The crux of the matter is how the proposed move will affect the children. Will the move affect the other parent’s ability to have a meaningful relationship with the child? If the child has to change schools are they at an age where this would be to the detriment of their studies? Depending on the age of the child and their level of maturity, what are their views on the move?
Can this work?
Many parents are able to work out a solution to this type of parenting issue by sitting down and sensibly discussing the issues and possible solutions, and mediation can act as a great tool here. It will always be in the best interests of the child if both parents are able to work together to avoid ongoing conflict, and court should be the last option to consider.
Seeking court orders
In the event that you are unable to reach an agreement regarding relocation, an application can be made under the Family Law Act to ask the court to make the ultimate decision. It is important to note that the court cannot make orders restricting the movement of a parent. The court does have jurisdiction however to make orders about where a child can live. In making a decision, the court’s paramount consideration is whether the relocation would be in the best interests of the child. The matters the court will consider in making its judgment are found under section 60CC of the Family Court Act and include:
- The likely effect on the child on any changes to their circumstances.
- The likely effect on the child of any separation from the other parent and other significant people in their life such as grandparents.
- The practical difficulty and expense of a child spending time with and communicating with the parent following relocation and whether this would affect the child‘s right to have a relationship and regular contact with the other parent.
If you are the parent who is not relocating and are concerned that the move will take place without your consent, or the move involves international relocation, you should contact a family lawyer urgently to make an application with the court. Failure to act quickly when a parent relocates the residence of a child can seriously affect your case.
Relocation is a complex family law area. If you are stuck in a moving quandary contact one of our expert family lawyers today – gain clarity on your options and receive legal advice specific to your individual case.
Every case is different and will be decided on the basis of its individual facts.
If you are considering relocating with children post-separation, or seeking other expert family law advice contact us today.