Should I stay or should I go? ♫ Relocating with children...
We all know the song! But what about the reality of a parent who has either relocated with the children or is thinking about doing so?
This is an all too common scenario we see in family law following separation and there can be any number of reasons behind the decision ranging from fleeing domestic violence, moving closer to extended family for support or even better job prospects. However, if you are considering relocating with your children, there are a few things to be aware of that might affect your decision.
The Child(ren)’s Relationship with BOTH Parents
The Family Law Act 1975 (Cth) states that a child has a right to a meaningful relationship with both parents.
Without stating the obvious, practical considerations such as where the other parent is situated, their relationship with the child(ren), and the child(ren)'s ability to spend time with that parent after relocating are all relevant factors that any reasonable person ought to consider.
For example, if the locality you are seeking to relocate to is between 10 to 20 kilometres from your current residence, this will probably not be much of an issue. Contrast this with a situation where one parent may be seeking to relocate interstate (or internationally which is a whole other issue entirely). In that situation, if the other parent has not given their permission to the relocation, they are entitled to seek orders from the Court, which can include injunction(s) against the other party, recovery of the children or relocating the children to the other parent.
Relocating Parent – What can you do?
The first step is to seek the other parent’s consent to relocate with the children.
If consent is not possible or no agreement can be reached, invite the other parent to mediation to try and resolve the disagreement.
If an agreement is unable to be reached at mediation, apply to the Federal Circuit Court of Australia (if relocating interstate) for an order allowing you to relocate with the children.Completing such an Application is quite technical and you will need to present strong reasons and supporting evidence to convince a Judge to allow you to relocate.
Remaining Parent – What can you do?
Whether the relocating parent has already left, or you have been advised by them or others of their intention to relocate, the first step is to write to the other parent and seek reasons. Based on those reasons, you may wish to consider either:-
(a) agreeing to the relocation; or
(b) agreeing to the relocation but otherwise setting boundaries/limitations and/or enter consent orders to secure your interest; or
(c) objecting to the relocation if they have not already left; or
(d) request the other party to return the child/ren.
If you do not want the other parent to relocate, or alternatively want them to return, and they persists with their intentions to relocate or refuse to return, invite them to mediation. In some circumstances where the relocating parent has already relocated, you may be able to skip inviting them to mediate the issue and proceed to directly to Step 3 (recovery).
Apply to the Federal Circuit Court of Australia for any of the following orders: -
(a) an injunction restraining the relocating parent from moving, if they haven’t already done so;
(b) an order that the relocating parent return to their original place of residence; or
(c) an order that the children remain with the remaining parent until further order.
If you, or anyone you know, are experiencing a situation where either parent is seeking to relocate or has already done so, contact our office on (07) 3209 7000 to arrange an urgent appointment to meet with one of our experienced family lawyers to assist you with your matter. Alternatively, you can book online now by clicking here.
Not sure what to do yet? Take a seat and listen to the song while you think it over by clicking here.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.
© Richard Hoare & Co Solicitors