Relocation of Children after Separation or Divorce
Are you separated and you want to relocate your residence with your children? Or has your partner relocated with your children without telling you?
Family situations change. It may become necessary for you to move your residence. There are many reasons for this, such as it may be too expensive for you to continue living where you are or you may wish to move somewhere closer to family to help support you as a single parent.
But if the children live primarily with you and you intend moving to a location that will “affect” the time that your child/ren spend with their other parent, the Court may not permit your child/ren to be relocated
You must first try to talk to the other parent, and do so well before the date you are thinking of moving. It may be possible to reach agreement for you to move, for instance by your child/ren staying with their other parent for a period of time longer than the arrangements you currently have in place, particularly during school holidays. Before a court can become involved it is mandatory to discuss the topic with the other parent.
If you can reach an agreement, you should consider entering into some Consent Orders or a Parenting Plan. This may involve amending Orders that you currently have in place with your former partner.
We assist clients in drafting proposals to move and then Consent Orders, a Parenting Plan, to amend any current arrangements.
What if you cannot reach agreement?
You can apply to the Court for orders permitting you to relocate with your child/ren. The Court will consider the question based on what is in the best interests of your child/ren – not your needs. The Court may not grant you permission to move. It is important to consider the impact your proposed move may have on your child/ren and their relationship with their other parent.
What if you have, or your former partner has, relocated without permission?
If you have a current Order or arrangement in place with your former partner, relocating without your permission may be breaking the terms of the Orders.
The Court cannot order an adult person to move their residence, however they can order that the children be returned to the location from which they were removed. This usually means that the Court may order that the children be returned to the general location, often to live with the other parent, if the parent who relocated, is unable or unwilling to return with your child/ren.
Again, the Court will consider what is in the best interests of your child/ren.
Moving without permission, as well as possibly having to return, could cause huge upheaval for your child/ren. It may mean that your child/ren have several changes of schools or affect their extra-curricular activities or established friendships, a parent’s unwillingness to consider this, who “moves without notice” is often attacked as lacking parental insight. Importantly, moving often affects the relationships between your child/ren and their other parent as well as their relationship with you.
What can you do?
Contact us and a member of our experienced legal team will be happy to help you, providing you with thorough and thoughtful advice regarding your options, to enable you to make the best decision for you and your child/ren and one that will not have to be undone at great emotional and monetary costs
|Case Study: A recent court case that we were successful in
Jack and Jill had some orders made in the Family Court about 5 years ago in relation to their three children, one in year 7 at high school, and the others in years 5 and 2 in primary school. The children live with Jack and spend every second weekend with Jill as well as half school holidays. Jill was also able to see the children regularly when the children wanted to see her as well as being involved with their weekly schooling and sporting events.
Jack, who lived in the family home in Sydney, decided to move to be closer to his family, an approximately three hour drive from Sydney. His reasons for moving included, amongst other things, the cost of living would be much cheaper than in Sydney and his family could provide support with the children, allowing him to work more hours.
Jack sent a letter to Jill asking for her to permit him and the children to move. Jack informed Jill that the schools in the new area were adequate for the children’s needs and that the children were enrolled in the same porting activities in the new location that they had previously been enrolled in Sydney. Jack confirmed that he would continue to comply with the parenting orders for the children to spend alternate weekends with Jill. To “make up” for Jill not seeing the children mid-week during the school terms, Jack said that the children could have a few extra days during school holidays.
Jill did not want the children to move with Jack. Jill believed that by the children travelling every second weekend, they would be tired and the lengthy drive each alternate week would become tedious for the children and intrusive in everyone’s lives. Jill said that she would not be able to continue to be involved in the weekly school and sporting activities and, logistically, the changeover times would have to be altered to accommodate the travel that would be required. In addition, the children had established relationships and friendships in the Sydney area and moving away would be a significant change for them.
Notwithstanding Jill’s views having been conveyed to Jack, Jill received a letter from Jack that he had moved, but would “continue to comply” with the alternate weekend arrangements.
Jill filed an urgent application in the Family Court for the “recovery” of the children, that they be returned to the Sydney area. Jill made a further application that, in the event that Jack was unable/unwilling to return, Jill submitted that she was able to care for the children full time and that they could spend time Jack.
In Jack’s Response to the application, he gave evidence that the children were still spending the same amount of time with Jill and that it was in their best interests for him to be able to earn income and have the support from his family.
The Court ordered that Jack return the children to the Sydney area. The Court determined that Jack had acted “unilaterally” in moving away with the children. The Court also, importantly, found that, notwithstanding Jack’s submission that the children were effectively spending the same amount of time with Jill, that it was important for the children to have “quality” time with their mother and it was not only about the “quantity” of that time. The Court found that it was in the bests interests of the children that they be returned to the Sydney area.
There were many facts and issues to be raised before the Court. As a result of our analysis of these matters, addressing the important factors that needed to be considered and because we prioritised and emphasised that important material, our client was ultimately successful in the application.