Many of us are very mobile. We may wish to move to a new area for many reasons… work, relationship, lifestyle.
This can be a difficulty if you are separated and have children.
Let us assume:
You have two children. They have always lived in Newcastle.
The children live primarily with you. They spend time with the other parent five nights a fortnight. Holiday time is equal. There is no Court order but this arrangement has been in place by agreement for the 2 years since separation.
You get a promotion which involves moving from Newcastle to Melbourne.
What do you do?
As there is no Court order you could just move to Melbourne with the children. It is unlikely that this would be a good idea. Presumably this will upset the other parent. They may commence court proceedings. Amongst other things they will probably seek an interim order (i.e. an order made ASAP that will control the situation until final orders are made after a final Court hearing) that the children return to Newcastle (either with you or to live with the other parent). It is likely that they would obtain such an interim order.
A better approach would be to discuss the matter with the other parent as soon as you are aware of the possibility that you may move.
In those discussions you need to be sensitive to the wishes of the other parent and the need for the children to spend time with the other parent. Think of things such as:
A. the children spending more than half the holidays with the other parent;
B. how many weekends is realistic for the children to spend with the other parent;
C. obtaining as much information as possible about plane flights;
D. are you going to offer to pay for all flights?
E. how can you assist the other parent if they want to come to Melbourne to see the children to make it more convenient and less expensive for them;
F. electronic means of communication including Skype.
The other parent may not be happy with your proposal, but at least they will recognise that you are making an effort to come to the best possible solution.
If you reach agreement you will save yourself the additional stress and cost associated with legal proceedings.
If you can’t reach an agreement with the other parent then you will need to go to mediation ASAP. You may be able to reach agreement with the assistance of the mediator. If you don’t reach agreement it is important to get the legal process moving ASAP and mediation is a necessary step in that process.
If you can’t reach agreement at mediation then you will need to commence court proceedings ASAP.
The difficulty with this can be the delay in court proceedings. Hopefully your employer can keep the position open.
What happens if the matter goes to Court?
One point to be aware of is that the Judge won’t see the issue as being, should you be allowed to move with the children? They will see the issue as being what arrangement is in the best interests of the children.
You will be proposing that the children live with you in Melbourne and spend certain time with the other parent. You will highlight matters such as:
(a) you have been the primary carer of the children since separation;
(b) you will do everything possible to encourage an ongoing relationship between the children and the other parent.
The other parent may have one or more proposals. They may propose that the children live with them in Newcastle and spend time with you in Melbourne. They may propose that you and the children live in Newcastle and the existing arrangement continues. Undoubtedly you will be asked if your proposal is rejected then will you stay in Newcastle or will you go to Melbourne knowing that the children will primarily live with the other parent in Newcastle?
Many factors will influence the Judge’s decision. The age of the children may be relevant. With older children it may be easier for the Judge to decide that they will cope with the distance and less frequent time with the other parent. The relationship between you and the other parent may be significant. If there is a good relationship then the Judge may be more confident that the distance barrier (and the surrounding issues such as flights, electronic communication etc) can be overcome. The wishes of the children (depending on their age) will be relevant.
There is no easy way to predict the outcome of a court case. Each case depends on its own facts. It is best to:
(a) seek good legal advice as to your position and the alternatives;
(b) seek to sort it out with the other parent if possible.
If you have any questions, please contact our Family Law Team.