Relocating with children after separation

Relocating with children after separation

It is not unusual, following separation, for one parent to consider relocating either intrastate, interstate or even overseas. Sometimes both parties can come to an agreement about child relocation. However, if agreement cannot be reached, parents can approach the Federal Circuit Court of Australia to request permission to relocate with children or to prevent a relocation.

What to do before relocating with children

  1. Consider what arrangements can be made for the other parent to spend time with the children;
  2. Discuss these issues with the other parents with the aim of coming to an amicable agreement.

Action to be taken if you believe your children may be relocated without your permission

  1. Apply to Court for an Order restraining the child's removal from Australia or a State; and
  2. Apply to have the childrens’ names placed on the Family Law Watchlist.

If the children have already been moved to another country, then you can invoke the provisions under the Hague Convention on the Civil Aspects of International Child Abduction if the country which the children were removed to is a signatory to the Hague Convention.

What do Courts consider in child relocation matters?

The Courts apply principles and considerations applied to every other parenting case. These principles include:

  1. The best interests of the children as set out in section 60CC of the Family Law Act; such as the relationship between the children and their parents, the parents’ willingness and ability to foster the relationship between the children and the other parent and the likely effect on the children of any changes in circumstances.
  2. The practicality of one parent living away from the other parent and the distance children would have to travel to see the other parent as well as the costs of the travel.
  3. Considering the practical reasons for the parent wanting to relocate which incorporates employment opportunities, accommodation, family support and medical treatment needs.

The Court must also take into account

  1. The childrens’ views and factors which might affect those views, such as the child’s maturity and level of understanding.
  2. The level of involvement of the other parent in the childrens’ lives (a Court may be more inclined to allow relocation where the other parent has little or spends no time with the children;
  3. Whether there is a history of family violence in the relationship.
  4. The stability of the relocating parent.
  5. The competing proposals of the parties. The Court will balance each of the proposals for the childrens’ living arrangements.

What action can the Courts take?

The Courts’ paramount consideration is the best interests and welfare of children.

The Courts can:

  1. grant or refuse relocation;
  2. issue an Injunctive Order preventing the relocating parent from leaving with children;
  3. order childrens’ names to be placed on the Family Law Watchlist;
  4. where a Parenting Order has been issued and it is breached and the parent cannot be found, issue a Location Order;
  5. make a Recovery Order if a parent breaches the Parenting Order by failing to return the children as ordered by the Court.

Get help

If you require legal assistance, including urgent assistance, in relation to child relocation, our team of family lawyers are able to assist you and help you determine the best course of action.

For more information to arrange a consultation with a lawyer, you can call or email us.

Phone: 02 9997 2111

Email:  info@ealawyers.com.au

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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.

Get in touch with the author:
Alexandra Monteiro Willcock

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