Fam­i­ly Law | I want to relo­cate with my child — can I go?

Fol­low­ing sep­a­ra­tion, one of the par­ties may to want to move to anoth­er city or inter­state. Some­times this is trig­gered by an offer of employ­ment; some­times it is a desire to return to the par­en­t’s own fam­i­ly, and at oth­er times it might be just to get away from the old neighborhood. 

If a par­ent believes they need to relo­cate urgent­ly, they should not just pack up and go. It is very impor­tant to seek legal advice before tak­ing any steps. 

The key issue is whether a move by one par­ent is like­ly to make it more dif­fi­cult for the oth­er par­ent to spend time with the child and be a part of their child’s life. Unless a child is at risk of harm, a par­ent who wants to relo­cate should dis­cuss their plans with the oth­er par­ent in advance.

What should I do first?

Like all big deci­sions in life, your pro­posed relo­ca­tion should start with a plan, prefer­ably in writing. 

Before you go into too much detail it is a good idea to con­sid­er the pros and cons. For exam­ple, mov­ing in with the grand­par­ents may save mon­ey but it may also add an hour to your work com­mute. Once you have con­sid­ered all of the pros and cons, if you are still think­ing of relo­cat­ing you need to devel­op a pro­pos­al cov­er­ing aspects including:

  • where you plan to reside with the children;
  • details of oth­er peo­ple who will be liv­ing in the house;
  • where the chil­dren will attend school or daycare;
  • the days and times that you pro­pose the chil­dren will spend time with the oth­er par­ent, for exam­ple at week­ends, dur­ing school hol­i­days or on spe­cial days such as birthdays;
  • how that spend time” will occur, for exam­ple you will bring the chil­dren to meet the oth­er par­ent at a suit­able loca­tion and the oth­er par­ent will return the chil­dren to your home afterwards;
  • how the chil­dren will com­mu­ni­cate with the oth­er par­ent, for exam­ple by tele­phone, email, Skype or Facetime;
  • how you and the oth­er par­ent will com­mu­ni­cate about future deci­sions involv­ing the chil­dren, for exam­ple by text message 

The next step is to approach the oth­er par­ent about your pro­posed replication. 

At a min­i­mum, you should obtain the oth­er par­en­t’s con­sent in writ­ing (this may include by email or text mes­sage), before you leave.

If we reach agree­ment, what should we do?

If you and the oth­er par­ent are able to dis­cuss your pro­pos­al then you can sim­ply write out the points that you have agreed so that there is no mis­un­der­stand­ing. You should con­sid­er whether to doc­u­ment your agree­ment in a Par­ent­ing Plan, which is signed and dat­ed by each par­ent but may not be legal­ly enforceable.

A bet­ter idea is to have your agree­ment draft­ed by a fam­i­ly lawyer and filed in the Fam­i­ly Court as pro­posed Con­sent Orders. These are Orders of the Court, made by con­sent between the par­ties. The par­ties are not required to attend Court. Once Con­sent Orders are grant­ed by the Court they are legal­ly enforce­able – each par­ty must com­ply with the Orders or risk a penal­ty for con­tra­ven­tion (breach).

What if we can­not reach agreement? 

If you can­not agree on par­ent­ing arrange­ments you could con­sid­er whether to attend medi­a­tion. Fam­i­ly medi­a­tion is a spe­cialised area, there­fore you should approach an accred­it­ed fam­i­ly dis­pute res­o­lu­tion prac­ti­tion­er such as Rela­tion­ships Aus­tralia. The par­ties are legal­ly required to make a gen­uine attempt at reach­ing agree­ment before ask­ing the Court to decide.

If you attend medi­a­tion and still can­not reach agree­ment, you can apply to the Fam­i­ly Court for per­mis­sion to relo­cate. This can be a lengthy and expen­sive process, and there is no guar­an­tee that your mat­ter will move through the Court sys­tem more quick­ly because of your desire to relocate.

How will the Court decide?

The Court will always deter­mine ques­tions of relo­ca­tion based on what is in the best inter­ests of the child. The Court will hear from both par­ents and will not always grant per­mis­sion. It will weigh up the com­pet­ing pro­pos­als of the par­ents and con­sid­er four possibilities:

  1. both par­ents to remain in the cur­rent location;
  2. both par­ents to move to the pro­posed new location;
  3. the relo­cat­ing par­ent going, and the chil­dren remain­ing behind with the oth­er par­ent; and
  4. the chil­dren relo­cat­ing with the par­ent who is going.

In one relo­ca­tion case the moth­er want­ed to move inter­state to Vic­to­ria, with her daugh­ter aged six years, 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;
  • The desir­abil­i­ty of the child devel­op­ing a clos­er rela­tion­ship with her mater­nal 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 see his child main­ly in blocks of time dur­ing the school holidays.

In anoth­er case, the Court allowed a moth­er to relo­cate with her nine-year-old son but but only on the basis that she was to remain with­in 20 kilo­me­tres from the father’s home, and only enrol the child in a school approved by the father. In sim­i­lar cas­es the Court has made an Order that nei­ther par­ty be per­mit­ted to change a child’s school, result­ing in both par­ents hav­ing to remain liv­ing with­in a rea­son­able dis­tance from the school. 

What if I am the par­ent stay­ing behind?

If you are the par­ent who will remain, and you think that the oth­er par­ent is going to relo­cate with­out your agree­ment, you need to act quick­ly.

It is far prefer­able to take steps to pre­vent relo­ca­tion than to try to address the sit­u­a­tion once it has already hap­pened. As you may need to com­mence urgent Court pro­ceed­ings to restrain your for­mer part­ner from rec­i­p­ro­cat­ing with the chil­dren, you should def­i­nite­ly seek legal advice as a mat­ter of urgency.

If you are seek­ing inde­pen­dent legal advice on the issue of relo­ca­tion, the Fam­i­ly Law team at Swaab would be pleased to assist.