Relocation of Children
After a separation, it is common for the children to spend time with each parent in separate residences. Frequently, parents try to establish homes that are relatively close to each other, and close to places such as the children’s school or perhaps other family members. Sometimes though, one parent may wish to move a significant distance from the other. When a parent is planning the relocation of children, difficulties may arise. In this scenario, a parent cannot relocate unless they have the fully informed consent of the other parent, or if the parties do not agree, a court order permitting them to relocate.
How do courts decide relocation cases?
Cases about relocation are not treated any differently by the court than any other application about arrangements for children after separation. The court’s most important consideration is still the best interests of the children. Just like any other parenting matter, the court must consider the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect the child from physical or psychological harm caused by abuse, neglect or family violence as the two primary considerations when determining their best interests.
There are then a series of thirteen other considerations for the court to consider. The court must also consider any other relevant fact before it can decide what is in the children’s best interests.
When making an application that involves relocating the children, a person does not need to show that they have compelling reasons that they wish to move. For example, they don’t need to be able to prove that they are unemployed, or that they have nowhere to live. Generally, however, they need to be able to show the needs of the children will be better met by a move, rather than staying where they are.
A court will consider all possibilities when deciding a relocation case. For example, if a mother is making an application to relocate with the children, the court will usually consider at least four options:
- Allowing the children to relocate with the mother, and making orders about spending time with the father;
- Ordering that the children live with the father, and not relocate, and making orders about spending time with the mother;
- Enquiring about whether the father could also relocate, and therefore have a similar arrangement to the current one, just occurring in a different location;
- Allowing the children to live with the mother, but only if she does not relocate, and therefore having a similar arrangement to the current one, occurring in the same location.
Depending on how far a parent is proposing to relocate, there may also be other options that the court considers. Usually, applications about relocation are contested by the other parent, as a successful relocation almost inevitably results in the children spending less time with one of the parents. If you are considering relocating with the children, or your former partner has indicated they are considering it, we can offer an obligation free consultation to discuss your options.
Try to reach an agreement
If you want to move away to another town or city with the children, then as with any parenting matter, it is always best for you and the other parent to try to reach an agreement about the future living arrangements for the children. In most relocation matters, it is difficult for an agreement to be reached as it means that the other parent to your children may lose time that they would normally spend with the children. It may also mean that they will not be able to be a significant part of the children’s day to day life. Despite the difficulties, all steps should be taken to try and reach an agreement.
Going to court for a Relocation Order
If you need to apply for a Relocation Order, it is important to have a very clear plan about the proposed move and why it is in the best interests of the children. This plan should include information about the following:
- Why do you want to move with the children?
- Where do you want to move to?
- Who is going?
- What will your financial circumstances be available if you were to move?
- Where specifically you will you live?
- What are the costs of the proposed move?
- How do you think each of the children will feel and cope with any proposed change?
- What arrangements do you propose for the children to maintain a relationship with the other parent?
As relocation cases are one of the most difficult family law situation that the court deals with, you should obtain legal advice from family lawyers experienced in relocation matters to help you prepare your case well before you file an application with the court.
International Relocation
If you have separated from your partner and would like to move overseas to live with your child, it is important to ensure you have the consent of your former partner or court order. Many countries are signatory to the Hague Convention regarding child abduction and if you relocate overseas unilaterally, the other parent can request the Central Authority to make an application to have the child returned to Australia.
If your former partner will not consent to you relocating overseas, then you can apply to the court for an order permitting you to go. When the court decides an Application for International Relocation, they are really deciding a parenting matter. Like all parenting matters, the overarching concern for the court is determining an arrangement that is in the child’s best interests. Where one parent has always been the main carer for the child and that parent wants to live with the child overseas, one of the main concerns for the court is ensuring the child maintains a meaningful relationship with the parent the child no longer lives with.
The court will take a range of considerations into account in making its decision whether to allow a parent to relocate, however where the primary carer has not demonstrated an intention to facilitate the child’s relationship with the other parent, it is less likely that the court will be satisfied that it is in the child’s best interests to live overseas.
Parenting cases of this kind are the more difficult cases to run in family law. The court’s decision can also be affected by circumstances of family violence, substance abuse, the child’s views (if appropriate) and the child’s specific needs.
To prepare your Application for an international relocation, you need to paint a picture for the court of what your life and the life of the child will look like when you move, so the court can be satisfied that it is in the child’s best interests to go. For example:
- Where you will live and what your living expenses will be
- Where you will work and what your likely wage might b?
- Where the child will go to school
- The extra-curricular activities on offer for the child
- Whether the child has lived there before and has friends there
- Family and other supports available for you and
- How the child will maintain contact with the other parent
The same questions should be addressed to paint a picture of the child’s life should they remain in Australia. It is always important to get advice to ensure you are fully informed of your legal options that are tailored to your specific circumstances and needs.
Interstate relocation
After parents separate it is not uncommon for one parent to want to relocate interstate with their children. This may arise as part of the parties’ separation or following their separation when one parent’s circumstances change. These matters are referred to by family lawyers as “Relocation” matters.
For parents wanting to relocate to interstate with their children, as with all parenting matters, it is always best for the parents to try and reach an agreement together about the future living arrangements for the children. In most relocation matters, it is difficult for an agreement to be reached between the parents as it means that the non-relocating parent may lose time that they would normally spend with the children and not be able to be a significant part of their day to day life. This needs to be weighed up with the other parent’s right to freedom of movement.
If the parties cannot agree about relocating after attempting to reach agreement, the relocating parent needs to apply to the court for orders allowing them to relocate with the children. When considering making a court application, the relocating parent will need to consider the following:
- Where they propose to move with the children
- Why they want to move with the children
- What time the children will spend with the other parent if they are allowed to relocate
- What the parenting arrangements will be if they are not allowed to relocate
- How the children will travel to spend time with the other parent
- The costs of relocating.
- The impact that moving will have on the children.
- Which schools, health services etc. the children will use.
When making orders that allow one parent to relocate interstate the overriding factor the court must consider is whether it is in the best interests of the children for them to relocate.
Relocation matters are one of the most difficult types of cases that the family courts deal with. If you want the best chance of moving interstate with your children then you should obtain legal advice from family lawyers experienced in relocation matters to help you prepare your case before you consider filing an application with the court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Michelle Makela
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...