Relocating after separation, particularly when involving children can be a complex issue within Australian legal framework. When deciding to relocate with a child and/or children, the relocating parent will need to consider how this impacts not only the child but also the other parent, and any subsequent parenting arrangements in place. Ensuring the best interests of the child are maintained in all decisions, is the overarching objective in family law parenting matters. This article will explore the legal framework surrounding relocation with children after separation, and important factors for parents to consider.

Relocation and Parenting Arrangements

If you and the other parent have equal shared parental responsibility, in order for one of you to relocate with the child, both of you will have to agree due to the impracticability of maintaining any existing parenting arrangements whilst one parent resides a significant distance away from the other parent. The Federal Circuit and Family Court of Australia will often recommend family dispute resolution, if communication about a potential relocation has occurred but you and the other parent wish to seek assistance with reaching an agreement.

If you and the other parent reach an agreement in relation to one parent relocating, it is important for this agreement to be formalised. Parents may agree on the relocation of one parent with a child on the basis that the child will spend time with the other parent during school holidays, or for agreed periods of time to allow the child to spend time with and build a relationship with the other parent (such as during school holidays). Other instances may see the other parent choose to relocate to the same area as the primary parent and child.

In the event that you cannot agree, an application to the Court can be made for parenting orders to either allow the relocation, or to restrain the other part from relocating with the child, depending on what is in the best interests of the child.

Court Relocation Orders

Orders can be made by the Court to either allow a parent to relocate with a child, or to restrain a parent from relocating the child. When making such an application for a parenting order, the relocating parent must demonstrate why the relocation will be in the best interests of the child. The Court may consider the following factors when making a parenting order:

  • What arrangements would promote the safety of the child and each person who has the care of the child;
  • The child’s own views and perspectives;
  • The developmental, psychological, emotional and cultural needs of the child;
  • The benefit of the child being able to have a meaningful relationship with both parents, and other people who are significant to the child; and
  • How the relocation may affect the child’s circumstances.

Overseas Travel

It is a criminal offence to remove or send a child overseas if there is a parenting order that has been made. However, this is negated if there is authenticated written consent by each party to the parenting order allowing the child to be removed from Australia, or the Court has made a parenting order which specifically allows this. In the event that there has been authenticated written consent or a Court order, it is an offence to retain the child overseas in any way other than permitted by the consent or order. Breaches of such an order occur where a parent retains the child longer than the time period agreed or permitted upon, or sending the child to places other than those agreed upon. The penalty for this under section 65YA of the Family Law Act 1975 is up to three years imprisonment.

Stopping your child from being taken overseas

If there is a circumstance that you may suspect that the other party will attempt to remove your child from Australia without your consent, the Court has discretion to make orders which can include:

  • Restraining the removal of the child from Australia;
  • A request that the Australian Federal Police place the child’s name on the Family Law Watchlist, and that they assist in the implementation of the Court orders.

In the instance that your child was unlawfully removed from Australia without your consent or the authorisation of a court order, the main international agreement that covers international parental abductions, the Hague Convention, may provide you with a process to seek to have your child returned.

For more information on preventing the unauthorised removal of your child from Australia without your consent, you can view our article on the Family Law Watchlist here.

Cases on Relocation post-Separation

MRR v GR [2010] HCA 4

This a significant child relocation case heard in the High Court. The matter saw both parents living in Mount Isa, with the child spending time with each parent on a week about basis. The mother proposed parenting orders which involved her relocating to Sydney with the child, however, the father was opposed to this. As a result, this led the mother to amend her proposal to offer two options. Option one proposed that the mother remained in Mount Isa and option two propose that both parents relocate to Sydney. The High Court considered the family’s circumstances to determine what would be in the best interests of the child. The High Court recognised the narrow employment opportunities available to the mother if she were to remain in Mount Isa and the impact of this on her  mental health. The Court illustrated how a relocation to Sydney would enable the mother to seek better employment prospects and significant support which would be beneficial to the circumstances of the child. Hence, the High Court approved an order to enable the mother to relocate with the child to Sydney as the prospects of employment opportunities and social support to be highly beneficial in ensuring the best interests of the child.

A & A: Relocation Approach [2000] FamCA 751

This case was fundamental in providing the Family Court guidance on the considerations to assess when making decisions in relation to relocation matters, emphasising the paramountcy of the best interests of the child. A & A considered the importance of taking into account “the relocation approach” by considering the reasons for and against the relocation of the child, the interests of both parents and the overarching paramount consideration of the best interests of the child. Some of the considerations in the reasoning of this case included that the relocation would be financially, professionally or emotionally advantageous in supporting the best interests of the child.

RAMSDEN FAMILY LAW – HOW WE CAN HELP

If you face such a situation whereby you or the other parent is seeking to relocate your child and/or children, you may consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time.

Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases relocation. We offer comprehensive legal support tailored to your specific situation.

We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.

Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving relocation issues.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.

Written by Reece Ramsden

Posted in: Case Studies, Parenting

December 02 2024