Video Transcript

Matthew Carney: Good morning. My name’s Matthew Carney, Senior Lawyer and Accredited Family Law Specialist with Turnbull Hill Lawyers. Today, we’ll be talking about relocation with children post-separation. It is not uncommon post-separation for one parent to want to move away from the area in which both parents were living previously to set up a new life for themselves and their children.

An important consideration, however, is that the Family Law Act provides that even without court orders in place, both parents have parental responsibility for every child. This can only be set aside by way of a family court order. Shared parental responsibility carries with it an obligation that both parents will reach an agreement about the long-term issues which affect their children.

One long-term issue includes where the children will live in circumstances where it would make it significantly more difficult for that parent to spend time with their children. Any change to a child’s living arrangement requires both parents to make a decision through negotiation and or mediation prior to that decision being made. In the absence of an agreement being reached by consent, there is an obligation on both parents to refer the matter to the Family Court of Australia for the family court to make a decision prior to any such move taking place.

For that reason, the family court is quite likely in circumstances where one parent has unilaterally relocated with the child post-separation to force that child to return to the living arrangements so that they can hear all evidence prior to making a decision. The court has different approaches for interim relocation decisions and final decisions. What happens at an interim basis, being a recent change in the child’s circumstances before a court can make decisions on a final basis, may be completely different to what the court determines on a final basis for that child’s living arrangements.

There have been many court decisions, and the court has made their position extremely clear regarding interim decisions for parenting arrangements. For relocation matters, a key case is the case of Morgan & Miles in which the family court stated that interim decisions regarding a child’s living arrangement should not be made in the background of recent changes, that being a recent separation and emotional circumstances that are arising circumstances of a separation.

The court’s approach to final relocation orders are substantially different, however, where a court initially would indicate to a parent that they cannot unilaterally make decisions regarding the future care and living arrangements of the child, after hearing all of the evidence, the court’s position may drastically change and allow that parent to move.

Ultimately, relocation cases are dealt with in the same manner as every parenting decision, that is, the court has to follow a statutory framework in determining, firstly, whether an equal time arrangement is appropriate. If it is not appropriate, whether significant and substantial time is appropriate. After considering all of these factors, the court will then apply what is in the best interest of the child to determine whether or not that parent wishing to move away with the child is allowed to do so.

What are the options in a relocation case? The first option is the court permits a parent to move with the child or children of the relationship. The second option is that both parents move to the new location to continue the current care arrangements with that child. The third option is the person with current care of the children relocates to the new location but leaves the children behind. The fourth option is that the residential parent moves away with the children, and the non-resident parent remains behind and new arrangements have to be put in place for that child’s care arrangements.

So what evidence will the court consider when making a decision about whether or not a parent is able to move with their child? In any relocation case, evidence should be led by the parent wanting to move about the child’s relationship not only with them but with their other parent. The parent should also lead evidence about the impact on the child if the move is allowed, and importantly if the move is not allowed, and why the move is on the balance better for the child in the long term.

The parent who wants to move with the child should also lead evidence about the family support that they have in the new area. While no parent bears an onus to prove that the move is in the best interest of the child, it is again beneficial to provide the court with evidence about why in the long term it is going to be in that child’s best interest for the move to take place.

Evidence may be of increased career prospects, increased abilities for the child to attend specialised schooling or education programs or other matters which would benefit the child in the long term. The reasons for the proposed relocation need to be canvassed as well as proposals for the non-resident parent who may either move to the new location or remain behind, how those new travel arrangements are going to be put in place and implemented. If a person is relocating with a child, they have to indicate to the court what arrangements are going to be made for that child to maintain a meaningful and beneficial relationship with the other parent.

The court also needs to be satisfied that those travel arrangements will ultimately be enforceable in the long term also. This is extremely relevant when international relocation are an issue. Ultimately, all relocation matters are unique. They fall on the evidence presented to the court and reflect what is going to be in a child’s best interest in the long run. If you have a matter that involves relocation, that would make it more difficult for a child to spend time with the other parent, you should obtain specialised legal advice from an experienced family lawyer.

It is extremely important that you have advice not only in the short term, so that you make child-focused decisions, which will support you in your application before the court, but also so that we can present and prepare evidence so that your end goal in relocating with your child is successful. If you have any questions regarding relocation or any family law matter, please don’t hesitate to contact myself, Matthew Carney of Turnbull Hill Lawyers. Thank you.

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