Relocation with Children
It is a misconception of some separated parents that relocating to another area with children is a relatively simple affair. You find another house, book the removalists, enrol your children in a new school and you inform the other parent that time arrangements have now changed to holiday periods. Right? Well….no, actually.
The above could almost run as a list of how not to approach the issue of relocating. It is not the inherent right of the parent with whom the children are primarily living to decide where the children should reside. Locality is considered by the Court to be a ‘major long term issue’ especially in circumstances where there will be a change to arrangements for time with the other parent/schooling etcetera. These types of decisions must be made in consultation with and the agreement of the other parent, even if there are no orders in place.
There is of course a considerable difference between relocating across town and moving to the other side of the country. It may even be that your current orders will allow you to relocate within a specific distance of the other parent (example 30 kilometres), as long as the other party is notified of the move. A relocation within this radius ensures that children are able to continue at their current school, remain in their current community, and maintain a strong relationship with the other parent. If there is no change to arrangements and the move will not make it significantly more difficult for the children to spend time with the other parent, then it’s probably not a ‘major, long term issue’.
But what if you are wanting to move further away than down the road and the orders you have in place, or the informal arrangements with the other parent, cannot practically continue due to distance? In that case, you will be required to come to an agreement with the other parent about your proposed relocation, or failing this, to apply to the court for an order permitting the move.
There is good news if you and your ex-partner have a good relationship as they may agree to your relocation once they are satisfied that their relationship with the children will not be adversely impacted. If you are able to have an open discussion with the other parent about their concerns, your commitment to supporting and promoting the children’s relationship with them through telephone and FaceTime calls, and your willingness to continue to involve them in the long term decision making for the children (which is required where there is shared parental responsibility), you may be able to reach an agreement without the need to apply to the Court. The level of trust and respect for each other as parents will have an impact on your success in negotiating your relocation.
In the event you cannot agree, you have the option of then applying to the Court for a variation to the existing orders or, if there are no orders in place, a parenting order based on the proposed relocation. The court will consider your relocation proposal and the parenting proposal of the other parent and will decide which proposal is in the long term best interests of the children having regard to the considerations set out in 60CC of Family Law Act 1975 (Cth).
In the event of a unilateral relocation – that is, you go without consent or an order - the Family Court has the jurisdiction to order that the children return to their previous place of residency. If necessary, this could include an order for a change in the primary care arrangements. Even if the Court would ultimately agree to the move, most Judges take a very dim view of any parent that moves without consultation or worse still, in the face of an objection and expect that the status quo of the children’s arrangements should be maintained, pending the Court’s determination.
This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.
"Liability limited by a scheme approved under professional standards legislation"