by mia Eddy, Paralegal, Orbell Family Lawyers
Relocating with children after a separation or divorce is a common issue for separated parents and often a complex and emotionally charged decision. Under Australian family law, it is critical to approach this issue carefully to avoid legal and emotional complications. Mia Eddy, Paralegal at Orbell Family Lawyers explores the essential considerations and steps involved in relocation cases.
There are many reasons why a parent might want to relocate to a different area after separation. This could include wanting to move nearer to family/ support, wanting to move with a new partner who might live in a different location, or moving for a job/employment opportunity.
When relocation is considered in a family law context, it is the relocation of the child (and not the parent) that is the key consideration and whether the relocation is in the child’s best interests. Relocation usually refers to cases where it is proposed for the child to relocate away from where they live to another town, state or even country and where this would require changes to any existing parenting arrangements.
Whether a parent will be able to relocate a child’s residence will depend on many factors and involves considering the existing parenting arrangements, whether there are any Orders/agreements in place that would prevent the relocation (without the other parent’s consent or permission from the Court), how the relocation would impact the child’s time and relationship with the other parent and whether the relocation is in the best interests of the child.
If an international relocation is proposed, this also involves consideration of international family law and will often require family lawyers from Australia and the other country to work together to have binding parenting arrangements in place in both jurisdictions.
If there are existing Orders in place:
If there are existing Orders in place and the proposed relocation would result in an inability to comply with those Orders (including if the time could not occur, school needed to be changed, the changeover location was no longer possible) then the relocation will not be possible without obtaining the other parent’s consent or permission from the Court.
If a parent relocates and this results in a contravention of existing Orders, this can have serious consequences, including an Order for costs against that parent and the risk that the Court will not permit the relocation.
The first step for any parent wanting to change Orders (including for relocation) is to try to negotiate and to reach an agreement with the other party. This can include negotiation between the parents directly, through lawyers and also through mediation if required.
For most cases, mediation is a required step prior to being able to go to Court and is a useful tool for parents to try to reach a workable agreement for their family without the cost and stress of Court proceedings (which are also very stressful for the children).
It is important to make a genuine effort to resolve the matter through negotiation/ mediation and to consider options that might help the other parent to consent to the relocation.
Relocation often requires compromises from both parties as time during the week/school term may no longer be possible/practical, but it might be an option to have extra time on weekends/long weekends and in the school holidays to still maintain the relationship between the children and the non–relocating parent.
Sometimes parents who want to relocate offer to cover travel costs for the child or other parent to make the proposal more attractive. Relocation proposals often include extra FaceTime/ telephone communication to make sure there is ongoing communication if the child moves away from one parent.
If you are able to reach an agreement with the other parent through negotiation/mediation it is really important that this is documented properly in writing and that the agreement is clear about everything that is agreed, particularly regarding the relocation and how it will affect any existing Orders in place.
While court intervention may be necessary in some cases, it should be a last resort. Mediation and other alternative dispute resolution methods are often faster, less adversarial, and more cost–effective. By prioritising open communication and compromise, parents can develop solutions that work for everyone, especially the child.
What if there are no Orders in place but there is a Parenting Plan?
If there are no Orders in place, but there is a Parenting Plan that covers parenting arrangements, the process would still be the same as set out above and the other parent’s consent should be obtained before any relocation.
Whilst a Parenting Plan is not legally binding in the same way as a Court Order, if a parent were to relocate a child’s residence without consent, the non–relocating parent would likely commence Court proceedings to stop the relocation from happening or to force the child to return. If there is a Parenting Plan in place, this will be used to show that there was an agreement in place that the relocating parent has broken and will be taken into account.
What if there is no written agreement in place?
If there is no written agreement in place regarding parenting arrangements it is still a good idea to try to get the other parent’s agreement before relocating and having any agreement properly documented.
This is to avoid a situation where a parent relocates (which often involves a lot of time, energy and money) and the other parent commences Court proceedings to try to make the child come back.
If the relocating parent cannot show that there was consent and if the relocation impacts the time between the children and the other parent, there is a real risk that the Court will make the child come back.
Options if an agreement is reached
If both parents agree to the relocation then as long as it is properly documented, the relocation will be allowed and the child will be able to move.
Consent Orders: This is a legally binding document that outlines your parenting agreement and is required to be filed with the Court. You don’t need to physically attend Court to enter into Consent Orders, but they are reviewed by the Court and the Court has to agree that the Orders are in the children’s best interests before the Orders are made.
Consent Orders need to be drafted in a particular way to ensure they are approved by the Court, are legally binding and capable of enforcement. It is important to get legal advice and assistance in drafting Consent Orders.
Parenting Plans: This is a written agreement covering agreed parenting arrangements but is not legally binding or capable of enforcement in the same way that Court Orders are. Parenting Plans work well when parents are amicable and can provide a lot more flexibility than Orders.
When Agreement Cannot Be Reached
If there is no agreement reached through negotiation/mediation (or where mediation is not appropriate) then an application would need to be made to the Court for permission to relocate.
If relocation is done without permission, it can result in Court proceedings being initiated by the other parent and often results in the Court forcing the child to come back.
Prior to being able to commence Court proceedings, you need to show that you have made a genuine attempt to resolve the matter, that offers of settlement have been made and notice given to the other parent of the intention to commence proceedings. Mediation will need to have occurred (unless there is an exemption or the other parent refuses to participate).
Court proceedings are commenced by filing an application in the Federal Circuit and Family Court of Australia (FCFCOA) and permission would need to be sought to relocate the child’s residence, together with other Orders about the time/ communication with each parent.
Case law tells us that relocation cases are not a special category of cases. They are parenting cases and decided in the same way as other cases, being a consideration of whether the proposal is in the best interests of the children.
However the Court will of course still consider the proposal to relocate (including the advantages and disadvantages to the children involved). The Court will also consider the nature of the child’s relationship with the other parent and the impact on that relationship if the relocation was allowed.
In all parenting matters in family law, the court’s primary consideration is the child’s best interests. The court will consider a range of factors in making this assessment which include child’s relationships, emotional and developmental needs, the practicality and benefit of maintaining contact with both parents, the reasons for the relocation, and any risks associated with the relocation.
Children’s views, where age–appropriate, may also influence the court’s decision. For instance, older children may have strong opinions about relocating, which the court may carefully consider.
Unilateral relocation (i.e. moving a child without consent or a court order) can have serious consequences. The court may order the child’s return, and breaching existing parenting orders may lead to penalties, including fines or, in extreme cases, imprisonment.
If you are thinking about relocating with your child or children, it is extremely important that you get legal advice before you make the move.
Relocation with children is a significant decision requiring careful consideration and legal compliance. By prioritising the child’s best interests and seeking agreement with the other parent, parents can navigate this complex issue more effectively. If disputes arise, professional advice and mediation can help resolve them amicably, keeping the focus on what truly matters: the wellbeing of the child.
Liability limited by a scheme approved under Professional Standards Legislation. The information contained in this article is provided for information purposes only and should not be construed as legal advice.
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