If you are divorced or separated you might be wondering:

  1. Can I move with the children; or
  2. Can my former partner move the children?

In this article, we will look at what your legal rights and responsibilities are regarding relocating with children, or opposing this, the steps to take when considering relocation. We’ll also cover what to do if you can’t reach an agreement with your former partner and the types of orders a Court can make in this situation.

Legal rights and responsibilities

Even without a Court order in place concerning your children, the law provides that both parents of a child under the age of 18 have parental responsibility for that child. Parental responsibility relates to all of the duties, powers, responsibilities and authority that parents have in relation to their children. Each parent has parental responsibility for a child regardless of whether they were married, in a de facto relationship or never in a relationship.

Parental responsibility requires parties to consult with each other and make a genuine effort to make joint decisions concerning major long-term issues. A major long-term issue includes any change to the child’s living arrangements that makes it more difficult for the child to spend time with the parent, such as one parent moving away.

This is commonly referred to by the Federal Court and Family Court of Australia as a relocation matter. If you and the other parent can’t come to an agreement, then you must seek an order from the Court.

If you plan to move

The first step you would need to take would be to approach the other parent of your child and discuss the reasons why you are seeking to move with the children. If there are no safety concerns on your end then you should discuss sensibly why you are seeking to move. This would include the benefits of any move to both yourself in terms of employment opportunities or proximity to family, along with any potential benefits to the children as well, such as access to a better school or environment.

In the event you still cannot agree then you will be required to attend family dispute resolution with a family dispute resolution practitioner. During this process the practitioner will likely discuss with you ways to reach agreement in relation to this issue or possible areas to reduce dispute between you and the other parent.

Seeking a Relocation Order from the Court

If you cannot agree at family dispute resolution, then you will be required to seek an order from the Court that provides for the children to relocate.

In the event your former partner relocates the children without your consent then you may need to seek an order from the Court in relation to their return.

When a relocation matter is heard, the Court considers evidence regarding what is in the children’s best interests, as these are the paramount consideration in all parenting matters. However, in a relocation matter in particular, the Court will also look at the following:

  1. The child’s relationship with both parents including the strength of the respective relationships and how that might be impacted by further distance;
  2. The impact on the primary parent if they could not relocate;
  3. If relevant, the availability of support for the primary parent and children including childcare, financial assistance and emotional support;
  4. While neither parent bears an onus of proving the existence of compelling reasons for and against relocation, these reasons should be explained to the Court;
  5. Any travel arrangements for proposals in relation to the child’s continuing interaction with the other parent, how the costs will be paid, the method of travel etc; and
  6. Are there any reasonable alternatives to the relocation, or is it feasible for both parents to move?

If there are risk and family violence concerns, these issues should be discussed with a lawyer before proceeding.

Interim Relocation Orders

The Court is hesitant to make Relocation Orders on an interim basis. That is before the Court has had the opportunity to hear all evidence and make a final informed decision about the proposals of the parties. 

In the case of Morgan & Miles (2007) FLC93-343 the Court held:

“…the very difficult issues in cases involving a relocation … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.”

Morgan & Miles (2007) FLC93-343

This means that the Court has strongly indicated that relocation decisions should not be made on an interim basis. 

Final Relocation Orders

The Court’s position in relation to relocation matters is that a proposal must be considered in terms of the child’s overall best interests. A relocation case is a parenting case and not just confined to the issue of relocation. 

The Court is likely to look at and canvas all available options for the parties. The options usually considered by the Court include:

  1. Both parents remain living nearby to each other;
  2. Both parents move to a new area and remain near to each other;
  3. The primary parent and child move away but the non-primary parent remains behind; and
  4. The primary parent moves away but without the child and the child remains behind to live with the other parent.

In all the above options, the Court is required to consider what option would be in the child’s best interest, taking into account all the circumstances in that case.

The Court is not bound to either proposal of the parents and may make any orders it deems in the best interest of the children. 

If you don’t agree to a move

In the event your children have been moved without you and the other parent reaching agreement then you can apply to the Court for a Recovery Order. 

A Recovery Order can direct the Marshal, Officers of the Australian Federal Police (“AFP”) or Officers of the State and Territory Police Forces to locate and deliver your child to you. The AFP receives all Recovery Orders issued by all Courts across Australia except for Western Australia.

If you don’t know where your child and the other parent have relocated you can apply to the Court to obtain a Location, Commonwealth Information or Publication Order from the Court to assist the AFP in locating your child.

In the event you are wanting to relocate with your children, or the other parent is considering relocating with your children then you should get legal advice. At Turnbull Hill Lawyers we have a team of trusted Family Law experts who can provide you with advice and representation concerning relocating with the children or opposing a relocation.

If you would like to speak to one of our family law team please contact us.

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