My bags are packed, I’m ready to go. Should I stay or can I go?

In Brief

Often sep­a­rat­ed par­ents find them­selves in a sit­u­a­tion where one of them wants to move to anoth­er city, state or even coun­try after they sep­a­rate. This is what’s called relo­ca­tion in fam­i­ly law.

Par­ents often enter into par­ent­ing orders after they sep­a­rate. All is going well for a time and then the par­ent, with whom the child lives, decides that they would like to move inter­state and they want to take the child with them. 

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 with a pro­pos­al of how they will be able to spend time with their child despite the dis­tance. You can, for exam­ple, offer the oth­er par­ent longer blocks of time over hol­i­days with the child, offer to cov­er the child’s costs of vis­it­ing them and the like.

If we reach agree­ment what should we do?

You should either enter into a par­ent­ing plan or new Orders before you move.

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. If you are the par­ent stay­ing behind you can approach the court for an order to stop the oth­er par­ent relo­cat­ing with the chil­dren. You need to act quick­ly in such a case to try avoid them moving.

How will the court decide?

The court is always going to look at 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 see which one is in the child’s best interests.

In a recent 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.

You should obtain legal advice before you pack your bags.