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Relocation with Children

Amy James
Senior Associate

Posted on 03/03/2020, Last Updated on 23/04/2020

 

What is relocation in Family Law?

After a separation, one parent (or sometimes both) will need to find somewhere else to live. It is not uncommon in these circumstances for a parent to want to move with children to be closer to family support, a new relationship, stable accommodation or to get access to better employment opportunities.

Whilst a person can choose to live wherever they like, and for whatever reason, the difficulty arises when a parent wants to take the children with them. Moving with your children to another town, state or country is what is known as ‘relocation’ in Family Law.

Generally, this involves a change to children’s living arrangements that makes it more difficult for the children to spend time with both parents. In the context of a separated family, this can present many complicated issues.

 

Reach a “relocation agreement”

Like nearly all Family Law issues, a negotiated settlement is often an infinitely better outcome than a litigated one. Accordingly, the first step should always be to canvass with the other party the prospect of reaching an agreement.

The parent with primary care of the children that wishes to move away with them should approach their former partner to discuss the issue (unless this is not appropriate where, for example, there are family violence issues or concerns).

To ensure meaningful discussions and negotiations can occur, the parent wishing to move should be able to provide the other parent with comprehensive information about their proposal, such as:

  • the area where they intend to live;
  • what school they would like the children to attend and, most importantly;
  • how they intend to facilitate the children spending time and communicating with the other parent.

 

This will show that they have given the issue considerable thought and allows the other party to give the proposal serious consideration.

Parents can also try Family Dispute Resolution (or mediation) in an attempt to reach agreement on the issue. This is a compulsory step in any event before applying to the Family Court (unless you are otherwise eligible for an exemption).

If an agreement is reached, parents can reflect this in either a Parenting Plan or Consent Orders. Please see our article on the differences between Parenting Plans and Consent Orders for more information.

 

Obtain a “relocation order”

If an agreement cannot be reached and a party wishes to pursue the matter, that party can apply to the Family Court for permission to relocate with the children.

This process (i.e. for the Court to impose a final decision after Trial) may, however, take some time to conclude – potentially up to 18 months or 2 years – and there is no guarantee as to what the final outcome may be.

The children’s best interests are always the paramount consideration for the Court in making such decisions.

If a parent becomes aware that the other parent is planning to relocate with the children without that party’s consent, urgent family law advice is vital. In the event the relocation is imminent, an immediate Application to the Family Court to prevent the children’s unauthorised removal taking place will be required.

 

Relocating without consent

Each parent has parental responsibility, which refers to all duties, powers, responsibilities and authority which – by law – parents possess in relation to children.

The Family Law Act 1975 (Cth) (or Family Court Act 1997 (WA) for children of de-facto couples) permits each parent to have “automatic” parental responsibility unless otherwise ordered by the Court. Parental responsibility includes the ability to make decisions about children’s long-term care and welfare, including the children’s living arrangements.

In the absence of Family Court Orders, this parental responsibility can be exercised jointly or severally, meaning, technically that a parent won’t be committing any sort of civil or criminal offence if they relocate with the children without the consent of the other parent (unless they move to an international jurisdiction).

 

However, doing so is very risky and certainly not recommended:

  1. If the unauthorised relocation is interstate or intrastate, a parent can apply to the Family Court for an urgent Order that the other parent immediately return with the children pending further Orders (called a ‘Recovery Order’); or 
  2. If the unauthorised relocation is international, a parent can apply to have the other parent returned to Australia with the children under the Hague Convention (referred to below).

 

If existing Family Court orders provide for the parents to have Equal Shared Parental Responsibility, the party wanting to move must first discuss and agree on the relocation issue with the other party.

Further, any existing orders will also likely cover the time the children spend with each parent. Therefore, a unilateral relocation may be considered a contravention of those orders, as the “moving” party will no longer be in a position to fulfil their (usually weekly) obligations under those orders for the children to spend time and communicate with the other parent.

 

Relocating overseas with children

It is important that the moving parent obtains either the clear, unambiguous consent of the other parent or a Court Order, if they are seeking to relocate overseas with the children. 

Many countries are now a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The main purpose of the Hague Convention is to return promptly to its country of origin a child who has been wrongly removed from one convention country to another, or who has been wrongly retained in a convention country. The Hague Convention took effect and was enacted into Australian law in 1986. 

If a party unilaterally relocates overseas, the other parent can request the Central Authority in that country to make an Application on their behalf to have the children returned to Australia. Such an application must be made within 1 year of the date of removal or retention of the child overseas.

 

There are, however, certain grounds under which the domestic Court has the discretion to refuse to order the return of a child to its home country, even if the child has been wrongly removed or detained such as:

  1. There has been no actual exercise of parenting rights by the Applicant;
  2. There has been consent to acquiescence in the removal of the child;
  3. Grave risk of physical or psychological harm to the child;
  4. Objection by the child to its return;
  5. Protection of human rights and fundamental freedoms; or 
  6. The child is already settled in the new environment. 

 

If you have been served with an Application filed with the Family Court in Australia to have a child/ren returned to an overseas jurisdiction; or your former partner has removed or retained a child overseas, you should seek immediate legal advice.  Delay could prove very costly indeed.

 

Factors considered by the Family Court

Relocation cases can be very complex and can have significant consequences for children’s living arrangements and, obviously, the other parent’s ability to spend time with them. 

Decisions regarding whether a parent should be allowed to relocate with children are determined by reference to the same considerations as any other parenting matter, i.e., the best interests of the children.

It is the responsibility of the parent seeking to change the children’s arrangements to demonstrate that the proposed new arrangement – even if that arrangement involves a move overseas – is in the best interests of the children. 

 

The Court will take into account the following factors (which is not an exhaustive list):

  1. The location of the proposed relocation, and distance from their current residence and that of the other parent;
  2. When the parent intends to relocate;
  3. The reasons for a parent wanting to relocate (however, compelling reasons for, or indeed against, the relocation need not be shown);
  4. The possible arrangements that can be implemented to promote the children spending time and communicating with the other parent;
  5. The impact of a relocation on the children’s schooling;
  6. The impact of a relocation on the children’s relationship with other family members; and
  7. What family and other support structures are available to the parent wishing to relocate.

 

Further, in addition to considering the children’s best interests, the Court will also give consideration to the “legitimate interests and desires” of the parents. 

A determination by the Court is almost always required in most disputed relocation cases, as there is generally no “middle ground”. The stakes are high for each parent as one adult’s freedom of movement may be restricted whereas, on the other hand, the other parent’s relationship with the children may substantially change for the worse.

 

Get Expert Advice

Relocation can be a complex area of law. For specialist advice on this or any other Family Law issue, call DS Family Law on (08) 9486 1766 for an initial consultation.

 

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