Relocating with a child after separation: What to know before moving
What to know about relocating with a child after separation
Considering relocating with a child after separation is quite common in Australia. Perhaps where you are based now means you are lacking in family support. Maybe you need to move away for employment opportunities or career advancement. Or, it might be that you need to move to care for family members or want a more stable environment or better education for your children.
Whatever the reason, you will likely want to know the answers to at least one of these questions:
- Can I move 2 hours away with my child?
- Can I move interstate with my child/ren?
- Can I move overseas with my child/ren?
- How far can a parent move with joint custody?
- Can anything be done if my ex refuses to allow the move?
- What if there is family violence? Can’t I just leave?
- What if the relocation is only temporary for an employment opportunity?
We will cover all of these questions but first it is essential to become familiar with what Australia’s Family Law says about relocating with children.
The relocation of children is determined by first looking at what is genuinely in the child or children’s best interests. While that might sound obvious, and almost preposterous to suggest that you would not have considered your child’s best interests in the move, it is not as clear cut as most believe.
Here we will bring you up to speed on what to know and do, or not do, before you move.
Can I move interstate with my child? Can I move overseas with my child? How far can a parent move with joint custody?
Before we can answer any of these questions, you must be clear about what the Court considers “best interests of the child”. This is central to all scenarios regardless of whether you plan to move overseas, interstate, or even 2 hours away from the other parent.
Even if you never anticipate that you will end up in Court, your decision making must take into account:
- What if any existing Parenting Orders say (the Court document outlining your Parenting Agreement or Court Ordered rules for the care of children, if you have them); & if not…
- What the Court considers to be in the “best interests of the child”.
Generally speaking you must first seek consent from the other parent. To demonstrate parental consent, authenticated written consent is preferable so you can prove there was an agreement. And, to ensure you have the best shot at getting that court application considered and approved, the consent must be prepared in a way that meets the requirements of the Court. That is why seeking legal advice from a family lawyer with experience with relocation matters is the best pathway forward if you are serious about a successful request to relocate with your children, whether 2 hours away, interstate or overseas.
Fleeing domestic family violence
If there is or has been family violence that is triggering the need to relocate, we deal with these matters with great sensitivity and awareness of the need for any communications and advice to be given in a way that minimise the risk of their partner discovering their enquiry.
If you are fleeing domestic or family violence you need to be aware that you must get legal advice before leaving. Otherwise, it can put you in a situation where your fleeing could be technically considered abduction or withholding children. So, this is why legal advice is so important.
We make a safety plan with our clients in family violence situations to support their exit and we can make urgent applications to the Court to protect your safety and your children’s safety until a Court hearing occurs, even if there are existing orders or a parenting plan in place. It is important for you to know that you have options, no matter your current circumstances.
Do not relocate without planning first with the right legal advice.
Can anything be done if my ex refuses to allow the move?
If consent is not given, the other avenue available to you is to apply to the Court for Parenting Orders permitting the relocation. Just like the written and authenticated parental consent requirements, applying for Relocation Orders must be done correctly the first time. And, as your planned relocation date looms, you want to ensure your application is not rejected or delayed by inaccurate or insufficient detail to support the application.
Importantly, not all family lawyers have significant experience with relocation matters. So, ensure you ask them questions about cases they have assisted with recently to get a sense of whether they will be aware of all of the nuances that a good application for Recovery Orders will have.
However, the Court will want to know if there are existing Parenting Orders or a parenting plan in place.
Existing Parenting Orders or a Parent Plan
If you have Parenting Orders or a Parenting Plan already in place, there may be terms relating to interstate and international travel but not always terms of any potential relocation.
Parenting Orders will often detail the requirements relating to overseas travel, sometimes including which parent will hold the passports of the children.
If there are no provisions for relocation included in your Orders then you may consider filing an Application for a Relocation Order. If you do have Parenting Orders with these instructions detailed, those are what are to be followed, unless you can prove extenuating circumstances for why they should be reconsidered. A Parenting Plan (if it includes references to relocation) might be good supporting evidence for your Application but it is not a legally binding agreement.
Another consideration of the best interests of the children is in relation to their current or existing living arrangements.
Living Arrangements
If the children live with the other parent at any time, regardless of whether there is Sole or Shared Decision Making Responsibility, then this must also be considered. The Court considers the current arrangement, with the proposed amended plan (e.g. living with the other parent full time during school holidays), along with other factors we’ll cover below.
If they do not live with the other parent currently, that is not always sufficient reason for the relocation to go ahead. A lawyer with experience in Relocation Orders will be able to provide you advice about what you can do to protect yourself in the event the other parent wants to challenge your Relocation after the move has occurred.
Shared Parental Responsibility
What used to be called ‘Parental Responsibility’, is now called ‘Decision-Making Responsibility’. Another consideration that is different to living arrangements is Decision Making Responsibility. Decision Making Responsibility is classified as either:
- Sole Decision Making Responsibility (or sole on specific issues such as education or medical); or
- Shared Decision Making Responsibility.
Shared Decision Making Responsibility is when both parents have “decision making powers” in relation to the most significant decisions relating to the care and wellbeing of their children. Sole Parental Responsibility can mean total decision making power but in some circumstances, only some decisions are permitted to be made by one parent (e.g. medical decisions) while other decisions are made by both parents.
You will only be classified as having Sole Decision Making Responsibility if you have a Court Order that says so.
If you have sole decision-making responsibility, this does not automatically mean that you can move overseas, interstate or 2 hours away. That is because again, the Court is always seeking to determine “the best interests of the children”. And again, like before, seeking initial advice from a lawyer with experience in Relocation Orders will be your best first step to minimise the risk of the other parent successfully contesting your relocation later on.
So are there any circumstances in which I can relocate easily with my child?
There are some clients we have that we can say yes, you are fine to move if you do x, y and z first. To others we will say that they will need to apply for Orders as soon as possible if they wish to progress the planned move.
In Canberra especially, it is not uncommon for a parent who has been the primary caregiver, to want to relocate overseas with their children temporarily for an incredible work opportunity.
In these circumstances, preparation is key. We help our clients identify what needs to be considered in relation to the children, including what they need to consider in regards to the provision of a good education while overseas, how the children will thrive and benefit, and generally providing solid insights into what their lives would look like during that posting. It would also need to consider how they will maintain and facilitate contact with the other parent.
Timing is everything in situations like job posting opportunities, and relocation plans in general. Often it is the case that the posting is due to start in 1, 2 or 3 months time so getting advice early to support your request to the other parent, and if consent is not provided, that we are prepared with sufficient evidence to apply to the Court and file an application for Relocation Orders.
What is always the case is that we must know the circumstances of their situation. We will ask lots of questions to ensure that the advice we provide takes into account any of the potential issues that may impact the success of your proposed move.
In a different scenario, the Court may consider relocation without consent from the other parent where you are in your current location only because it was only meant to be a temporary move. For example, your partner took a job in the town or city that you moved to and the impact now after separation is that you are either isolated or without support from family, or unable to get employment in the same city or town, or your mental health has been significantly impacted.
The law says that in addition to reviewing the reasons for your proposed relocation, the Court will consider factors such as:
- The child’s best interests, weighed against the parent’s ‘right’ to exercise their freedom of movement;
- The impact of each child’s relationship with the parent they will be moved away from;
- The ties each child has to their current community; &
- The ability for the relocating parent to support and facilitate the relationship of the children with the non-relocating parent.
And while the Court doesn’t focus on how your current location impacts you, they are focused on how that trickles down and affects your children.
Importantly, none of these examples will contribute to the Court’s decision in your favour if you do not provide admissible evidence of the impact of the separation and why a relocation is required. For your application to have the highest opportunity for success, you should seek advice from an experienced lawyer who will listen to you, ask you plenty of questions and then make you aware of your options. What is tragic is when a parent goes to Court only to have the application dismissed when it had a chance.
Before you start packing
If you do need Relocation Orders, what is central to the success of your application for Relocation is the advice you get and the quality of evidence you provide to support your application.
Importantly, whatever you do, do not relocate and hope that once you move, nothing will be done about it. The consequences can be significant for you and your children in both the short- and long-term. A move without consent can be considered abduction, a serious criminal offence.
In the event you don’t need relocation orders because you have the other parent’s consent, still run this by a legal professional. The last thing any person needs after relocating is having to deal with the other parent later challenging the validity of their consent or Agreement.
Moving house, town, city, state or country is a significant life milestone in and of itself. You don’t want to have gone through all those processes, set up a new home, job and school for your child, only to find yourself in a situation where the other parent is challenging the move, the validity of their consent or agreement, leaving you with no choice but to return your child back to where their other parent lives. It is not uncommon for the Court to issue Orders requiring a parent to return with a child.
If the Court considers your relocation to be without legally authorised consent or agreement, it can adversely impact you in other ways. In some circumstances it can lead the Court to form a view that you did not place the best interests of your children as the most paramount consideration in the move. Approaching relocation with children in the wrong way has led to well-intentioned parents losing out. In the worst case scenarios eventuating in reduced time with their children and a change to their solo or shared parental responsibility going forward.
We have insights into how the Court treats relocation with children. We know what can contribute to the success of an application for Relocation Orders and what can contribute to the application being dismissed.
