What Happens if You or Your Former Spouse Want to Move Away With the Children?

30 SEP 2020

 

Situations where one parent wants to move to a different city, state or even country with the children and the other parent is opposed to that occurring, are called “relocation cases” in the Family Courts.

You might think that in those situations both parents need to agree to the relocation for it to happen. That is not the case. Family law Courts have the power to allow a parent to move away with the children where the other parent opposes it and will use it if they think it is appropriate.

These are often difficult matters as it is hard, if not impossible, to reach a compromise. Either the parent that wishes to relocate is allowed to or they are not.

When parents are unable to reach a compromise agreement, the Court then has to make the decision. It can take between 2 to 3 years to reach the point of having a trial before a Judge and can be quite costly for both parents.

Not only are relocation cases difficult for the parents themselves, they are difficult for a Judge. It is quite often the case that a parent can have perfectly good and legitimate reasons for wanting to move somewhere else and the other parent can have perfectly good and legitimate reasons for wanting the children to stay where they are.

How does the Court make their decision?

As with all matters relating to parenting, the Court makes its decision by having regard to what is in the best interests of the children.

The case of A v A (2000), provides us with the principles about how a relocation case is to be decided:

  • Neither parent needs to provide a compelling reason for or against the relocation.
  • The Court must consider what is in the best interests of the children by also considering the interests of each parent.
  • Where there is a conflict between what is best for the child and the parent, the priority must go to the child’s interests.

How does the Court decide what is in the children’s best interests?

When considering what is in the children’s best interests, the Court refers to the considerations set out in Section 60CC of the Family Law Act 1975.

The two most important considerations are:

  • Will the relocation affect the ability for a child to have a meaningful relationship with either parent?
  • Is there a need to protect the children from a risk of abuse, neglect or family violence if the children do or do not relocate?

Additional considerations are the following:

  • If a child is old enough, do they or do they not want to relocate?
  • How close is the child to each of their parents?
  • Where do other family members live that may play a significant role in the children’s lives? For example, grandparents, aunts and uncles, cousins, etc.
  • How involved has each parent been in the children’s lives so far?
  • How will the separation from one of the parents affect the child?
  • How will separation from other important persons affect the child? If relocation does or does not occur, will it be difficult and expensive to spend time with a parent and will that difficulty and expense affect their relationship with that parent?
  • Will a relocation affect a parent’s capacity to care for a child? For example, is it difficult for a parent to afford to care for a child in one city over another? Will relocating or not have mental health impacts on a parent and will that affect their ability to provide for the children?
  • If a child is Aboriginal or a Torres Strait Islander, will a relocation affect their ability to enjoy their culture?
  • What is the attitude to the child and to parenthood demonstrated by each of the parents?
  • Is there any family violence that involves the child or a member of the family?
  • Is there any family violence order that is or has been in place (such as an AVO)?

The Court will consider all of the above factors and perhaps more, if there is an issue that the Court thinks it should have mind to. The Court will make an overall assessment after considering each of the relevant factors about whether relocating or not will ultimately be in the children’s best interests.

Every child is different, every parent is different and every family is different and that means that in these types of cases, there is a wide range of outcomes that a Judge can determine are in the best interests of a child.

As these matters are complex, it is important that if a parent is considering relocating or they become aware that the other parent is considering relocating, that they obtain advice from an experienced family lawyer about how best to navigate the situation and deal with the other parent. The way a parent approaches the situation can affect the likelihood they will receive the outcome from the Court that they want.

If you require more information on the above please contact Nevine Youssef on nyoussef@marsdens.net.au or by phoning 02 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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