Parenting arrangements and relocation
Parenting arrangements and relocation cases are some of the most complex and difficult cases Courts are faced with. These matters are already difficult when a parent relocates within Australia, let alone the issue of a country to country relocation.
When a relationship breaks down, many people seek out family support and feel the need to return to their place of origin. Often economic issues are a motivating factor for moving back home with family to allow a separated parent to get back on their feet and sometimes a new love means that a move to another city or town is on the cards.
Relocation cases are parenting cases. The guiding principle is still what is in the best interests of these particular children, having regard to a framework of issues to be considered and set out in the Family Law Act.
While a parent’s reasons for wanting to move are relevant and important, the parent who does wish to relocate does not have to show a compelling reason for the relocation.
Can you or your former partner relocate with your child?
If you do not have a parenting order in place, it is possible the other parent can relocate with your children. And if the children are moved from the place they usually live to another, making it hard to see them and participate in their lives, or if it results in reduced time with the children, you may make an application to the Family Court for the return of the children to their original place of residence, pending the Court’s decision about which parent they should live with on a long term basis.
Unilateral action is usually frowned upon by the court, so it is best to get advice before relocating. If there are Court orders in place which determine where your children live and how much time they spend with both parents, then relocating can be far more difficult. A relocation without the other parent’s agreement is likely to put you in immediate breach of orders for equal shared parental responsibility and also orders that provide for children to spend time with their other parent. It can also have the effect of reducing the other parent’s ability to participate in sport, extracurricular activities and school based activities.
What is the process if one parent wants to relocate?
The process of wanting to relocate can be difficult when parenting arrangements have been in place for some time. Especially if the children live in an equal shared care arrangement. There are many factors that will need to be taken into consideration such as the children’s age, their views, their schooling and sports commitments as well as friendships and most importantly their relationship with their other parent. The interruption caused to the children is an important factor, but it is not the only factor. If you are the staying parent, you might argue that long-standing arrangements for the children will be disrupted to their detriment and the children will not be able to have a meaningful relationship with you as well as members of the extended family such as grandparents.
As the parent wishing to relocate, it is extremely important to give careful consideration to the practical arrangements that you will need to make so that the children will be able to spend time with their other parent. It is important to carefully think through and plan for the time and expense involved with children (especially little children) travelling long distances to spend time with their other parent.
If you are wanting to relocate with your children the main thing you need to do is seek legal advice before taking any kind of action. Only after seeking specialist advice can you be confident about whether your actions will have any short or long-term consequences.
What application do you need to make?
If you do not have an existing Order in place, then you may need to make an application for a Parenting Order if you and the other parent cannot agree on the issue of the relocation of the children. If you do have a parenting order in place, you can seek to change or vary the existing parenting orders, or if the other parent agrees to the relocation, discharge them and start over again if the other parent agrees.
How to best approach relocation with children
All successfully negotiated relocation cases have started with good planning and are well organised. If you are looking to relocate you must have everything prepared and be aware that the Court might order you, as the moving parent, to be more responsible for the cost of the child’s transport needs
If you are the relocating parent, you need to prepare and demonstrate that you can continue to facilitate the child’s relationship with the staying parent. In terms of planning you should have schools, accommodation and transport fully investigated. It is important to be ready to present evidence of what the children’s travel arrangements will be (such as airline flights) and the costs involved. This, of course, will be difficult evidence to have at the moment given the state of the aviation industry and border closures as a result of the pandemic. As the relocating parent, it may be that the bulk of the children’s travel costs may well fall to you.
It is wise not to relocate without the express agreement of the children’s other parent. To ensure you minimise risk in your negotiations and actions, speak to a family lawyer to seek some initial advice. They are best positioned to help you to navigate your way through the process successfully.
DDCS Lawyers specialise in all aspects of family law and can help guide you through the process of relocating. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.