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24 July 2017 My bags are packed, I'm ready to go. Should I stay or can I go?

By Monique Robb, Senior Associate

In Brief

After separation, it is not unusual for one party to want to move from the city or town in which the family resided, to another city or state – often to return to the parent's own family of origin.  This is called relocation in family law.

In almost all cases, the move will, because of the distance, make it more difficult for the other parent to spend time with, and be a part of their child's life.  The parent who wants to move should not just pack up and go - they need to discuss it with the other parent first.


What should you do first?

You should approach the other parent about your proposed relocation. You proposal should cover:

  • how the children will spend time with the other parent – do you propose longer blocks of holiday time? Is the other parent welcome to see the children in your proposed location?

  • facilitation of regular communication via Skype, Facetime, or other electronic means – how often?

  • where you will reside with the children.

  • what school/s you propose the children attend.

If we reach agreement what should we do?

You should either enter into a parenting plan or new Orders before you move.  At a minimum, you should obtain the other parent's consent in writing (this may include by email or text message), before you leave.

What if we cannot reach agreement? 

If you cannot agree on new arrangements the only alternative is to approach a court for permission to go.  This can be a lengthy process.  There is no guarantee that your matter will move through the Court system more quickly, on the basis of your proposal to relocate.

If you are the parent staying behind and anticipate that your former partner is going to relocate without your agreement, you need to commence proceedings quickly, to restrain your former partner from relocating with the children.

How will the court decide?

The court will always determine what is in the best interests of the child before agreeing to the parent moving.  The court will not always grant permission.  They will weigh up the competing proposals of mum and dad and consider 4 options in making parenting orders:

  • Both parents remaining in the current location;

  • Both parents moving to the proposed new location;

  • The relocating parent going, and the children remaining behind with the other parent;

  • The children relocating with the relocating parent.

In one relocation case the mother wanted to move interstate to Victoria with her 6 ½ year old daughter to care for her mother who was terminally ill.  In that case the court allowed the mother to move after considering:

  • The effect on the mother if she was not allowed to move;

  • The ability of the child to maintain a relationship with both her father and her paternal grandmother even if she moved;

  • The desirability of the child developing a closer relationship with her maternal grandmother (she already enjoyed a close relationship with her paternal grandmother);

  • That the mother had a job lined up in Victoria and no employment in Sydney;

  • The mother's need to have emotional support from her family in Victoria given the feelings of loneliness and isolation she experienced in Sydney;

  • The father's concern about a permanent relocation, the fact that he could not move to Victoria and that he would not see his child every alternate weekend but rather mainly blocks of time in the holidays and

  • The court found that the 6 ½ year old would be able to maintain a close relationship with her father even if she only saw him for extended times over school holidays.  Considering all the issues the court found that it was in the child's best interests to live with her mother and that they would be able to relocate.

Equally, in other cases the relocation has not been permitted, where it was not considered in the children's interests to move to a new location and be separated from the non-relocating parent.

You should obtain legal advice about your individual circumstances and prospects of success, before leaving with the children.

Monique Robb, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: mcr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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