Family Law Case Note: Relocation with Children
Publish Date: September 20, 2012
Are you considering relocating with your children after separation? Or are you concerned that your ex-partner will relocate with the children? - What you need to know.
As our needs and personal circumstances are constantly being adjusted as a result of living in an ever increasingly mobile world, many parents often find themselves in a situation where they wish to relocate to another city or state within Australia or even overseas after separation.
Common examples of relocation arise when a parent wants to move closer to or reunite with his or her own extended family, or they re-partner with someone who lives in a different part of Australia. In addition, it is common for many parents to relocate to a city which offers more employment or educational opportunities as well as more economic benefits to both the parent and the children.
Whilst the Court will not prevent a parent after separation from relocating, it can, however, prevent the parent who is the primary carer of the children or whom the children predominately live with from relocating with the children if the other parent does not agree to such a relocation.
If you have explored all avenues for resolving this matter and your ex-partner continues to oppose your proposed relocation with the children, it is strongly recommended that you obtain legal advice in order to assess the prospects of success of your relocation application should the matter proceed to a hearing.
As each case is unique, there is no formula which predetermines the outcome of a relocation application one way or another.
When determining the merits of a relocation application, the Court applies the following principles:-
The welfare or best interests of the child remains the paramount consideration;
The Court cannot require the parent wishing to relocate with the children to demonstrate compelling reasons for the relocation of the child's residence;
It is necessary for the Court to evaluate each of the proposals of the children's living arrangements advanced by each parent;
The evaluation of the competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests;
A Court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child.
In evaluating whether the relocation proposal put forward by one parent is in the child's best interests, the Court takes a number of matters into consideration including the following:-
The arrangements each parent proposes for the child to maintain contact with the other parent to ensure the continuation of the other parent's relationship with the child;
The importance of a party's right to freedom of movement and how the parent's move impinges upon the child's best interests;
Whether the arrangements proposed for the child's contact with the other parent promote the continuation of a meaningful relationship between the child and the non-relocating parent;
The travel costs involved for the non-relocating parent to be able to have regular contact with the child;
The reasons for relocation.
However, the Court is not necessarily bound to accept either parent's proposal if it is not satisfied that the competing proposals are suitable and in the children's best interests. The Court has the power to look beyond each parent's proposals.
Although the distance of the proposed relocation is a relevant consideration, it is not necessarily the determining factor in the outcome of a relocation case.
For example, a proposed relocation which involves a relatively short distance may be significant in the case of a heavily urbanised area compared to a relocation proposal which involves a greater distance in a regional area where the parents and the children are used to and accept frequent and considerable travel as part of their daily life. In some smaller communities where the available means of transportation such as regional airlines and other public transport facilities are not readily available or reliable, this would also be a significant factor in the overall assessment and determination of a relocation case.
Determining a relocation case is never an easy task. Each case turns on its own facts.
If you are considering relocating with the children or you would like to find out if you have a reasonable case to restrain the other parent from relocating with the children, you should seek legal advice from an experienced solicitor who practices in family law in order to assess your particular circumstances and advise you of the prospects of success of your particular application.
For further information or assistance please contact Rockliffs on 02 9299 4912 or email us at firstname.lastname@example.org