Relocation with children after separation

This article addresses the question of when — if ever — it is appropriate to move to a new city, a new state, or even overseas with your children.

For simplicity, in this article it is assumed that the children of a relationship spend time with the father and live with the mother who wishes to move. The same principles apply to all scenarios where two or more people with parental responsibility have a parenting arrangement for one or more children. References to a court in this article include the Federal Circuit Court and the Family Court.

What is relocation?

In Family Law, relocation refers to you moving with the children to another town, state or country.

If moving is going to limit the time the children spend with the father, the court may make Orders stopping you from moving.

The complexities of relocation and travel for children after separation

When you separate, whilst sharing parenting responsibilities, you also need to be able to earn a living and to pursue meaningful opportunities for yourself.

Your opportunities may be limited in your current location, or you may wish to move interstate or to a new city to be closer to support networks or better job options. Whatever your motivation for seeking to relocate, there are factors to consider around the impact that moving can have on your children.

Significant psychological factors to consider about relocation after divorce and separation include the potential for the development of mental health problems and complex developmental issues. After separation it is critical to establish a routine and continued and ongoing support and care from both parents.

Reaching agreement

If you are the children’s primary carer and you are looking to move, the first (and best) thing you should to is talk to the father to try to agree to change the time the children spend with him. While he may be completely opposed to the idea at first, you may find that over time you can reach a compromise. For example, the children could live with him for longer periods during school holidays. He may even be open to moving to where you are looking to relocate.

If you cannot reach agreement the next step should be to seek legal advice and attend family dispute resolution. If you reach agreement here, you should formalise it by making a parenting plan, or by applying to the family court for a consent order.

The court can intervene and make a relocation order

If you are looking to move, and you have made this decision considering what is in the best interests of your children — but the father is still refusing to agree — then the court may intervene.

A relocation order sets out conditions of relocation, including when and where a parent can move and how often the other parent can visit.

Best interests of the child

In relocation matters, the guiding principle is the “best interests of the child”. The relocating parent need not present a compelling case but instead must show how it would be in the best interests of the child along with plans as to how the non-relocating parent might still have a relationship with the child.

The Court will consider the existing relationship of the child with the non-relocating parent. This could include circumstances such as family violence that could make for an unsafe situation for the child and parent.

Views of the child

The views of the child will be considered depending on their age and maturity, but the Court will not necessarily endorse these preferences. 

All options should be explored, including both parents relocating, to maintain a relationship with the child.

Each case is different, and a determination will be based on the specific facts and circumstances of the case. In reaching a decision, the Court must balance the child’s interest with those of both parents in a way that promotes the welfare of the child while recognising the interests of the parents.

A new job in a new town may not be considered a suitable move, especially if it:

  • Causes the children significant upheaval;
  • Contributes to the loss of their support networks; or
  • adversely impacts a child’s relationship with the father.

If you move without a court order or without the father’s consent, the court may require you to return with them until final orders are made. If you break a current court order that you not move, the father can ask the court to order that the children be located and recovered to his care.

Can the children travel overseas?

If you are planning an overseas holiday with the children, you should advise the father of your intention as soon as possible. You should provide details of where you will go, a full itinerary and contact numbers for your accommodation.

How do I apply for a passport for my child?

Applications where both parents give written consent can be lodged at an authorised Australia Post office or an Australian Passport Office.

If the other parent will not give written consent, a written request can be made to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’. For more information about requests to consider ‘special circumstances’ contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au.

If you have tried to speak to the father about moving and they oppose your proposal, we can help you to mediate a decision about relocation and may help you to reach an agreement without having to seek a relocation order through the courts. If you need advice on relocation orders, contact us today.

We can discuss your position in a free consultation; and there is no obligation to proceed with us after this free session.

The Family Court website has information on this topic: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting/relocation-and-travel/

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