Relocation with children under the age of 18 years after separation is an issue that parents are often faced with. One parent may have been offered the job of a lifetime in a city in another state, met a new partner or want to move closer to their own support network hundreds of kilometres away. But what does this mean for current parenting arrangements?
Firstly, it is important that a parent does not relocate without the other parent’s consent.
If possible, the parent who is thinking about moving should approach the other parent to try to speak with them about the proposed relocation. If the other parent is open to the relocation and provides consent, the parent who is moving should get that consent in writing.
Family Dispute Resolution (FDR) is compulsory before any legal action can be taken in a family law court, subject to some exceptions. FDR is often an effective way for parents to discuss these matters with the assistance of a trained FDR practitioner. You could also engage a family lawyer to write to the other parent on your behalf.
Getting consent
Sometimes the other parent may consent to your proposed relocation, proving you can come to suitable arrangements so that their relationship with the children does not suffer. This may mean that you will offer the other parent frequent video calls, longer periods of time spent with the children during school holidays or you may offer to pay for any expenses to facilitate regular visits between the children and the other parent.
If the other party will not consent
If the other parent won’t consent, that parent should not relocate with the children and will need to work with the other parent to obtain their consent or apply to the Federal Circuit and Family Court for approval by the court.
If a parent does relocate without consent or permission from the Court by way of Court Order, the Court has the power to order that the parent who left returns with the children, at least on an interim basis until it is determined whether there is permission to relocate or not.
Additionally, if a parent relocates without the consent of the other parent, it could reflect poorly on the relocating parent as it demonstrates to the Court their apparent disregard for the other parent’s involvement in the children’s life and essentially what is in the best interest of the children. This could significantly affect the final decision the Court ultimately makes.
Where you wish to proceed with relocation but cannot obtain the other parent’s consent, you should obtain legal advice.
If necessary, an application can be made to the Court seeking permission for the relocation. Ultimately, the Court will make the decision based on what is in the best interests of the children. In determining this, the Court will take into consideration a range of matters set out in the Family Law Act section 60CC including:
- The current relationship between each parent and the children.
- The age of the children, including whether they are old enough to sustain the relationship they have with both parents if the relocation occurs.
- How difficult it will be for the other parent to see the children if the relocation occurs, including the costs of such?
- The reasons behind the proposed relocation, including better family support, better employment prospects, schooling and the lack of things available to the parent if they were not to relocate.
- Whether the parent relocating has demonstrated a willingness to maintain the children’ relationship with the other parent.
- Whether there are other significant people in the children’s’ life that will be affected by the relocation, such as siblings, grandparents etc.
- Whether it is reasonable for the other parent to also relocate.
Each case if different and the decision of the Court will depend on the specific facts of each case.
If there are parenting orders in place
Parents must follow any parenting orders that are already in place. These orders are legally binding and cannot be changed without the permission of the Court. It must also be noted that it is an offence under the Family Law Act to remove children from Australia without the written agreement of the other parent, or Court orders. The person removing the children can be face criminal charges if they commit this offence.
Should consent be given by the other parent to relocation, the parent should seek legal advice as to how to document such consent so that that they are not in contravention of the parenting orders.
If consent isn’t obtained, you will have to apply to the Court for a variation of the orders. You will need to seek legal advice as to whether you have grounds to make such an application.
If there is parenting plan already in place
Parents must follow any signed parenting plan that are already in place as that plan sets out agreed parenting arrangements. Most parenting plan have a clause which requires the parents to attend FDR to sort any serious issues if they arise. Relocation is that type of issue.
If you are worried that the other parent wishes to relocate
If a parent is concerned that the other parent may relocate without their consent, the parent who is concerned can apply to the Court seeking the parent be restrained from doing so and seeking the Court’s guidance and final orders.
Before applying to the Court, parties will need to attend FDR unless they fit within one or more of the exemptions to FDR.
If you have concern that the other parent may attempt to remove the children from the country, you should seek urgent legal advice as to how to make an urgent application to the Court and have the children placed on the Family Law Airport Watch List. This will alert the Australian Federal Police and airport officials in the event there is an attempt to remove the children from the country.
Summary
Relocating with your children after separation. However, the right procedures must be followed, and it is not to be undertaken lightly.
We strongly recommend legal advice be sought if a parent is considering any sort of relocation or suspect that the other parent is considering relocation.
In the event you think the children may be removed from Australia without permission, then urgent advice from a specialist or experienced family lawyer is critical.
For more information, see our Family Law team.
