Relocation with children after separation: a useful checklist in relocation cases

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Increasing costs of living, employment opportunities, and the need for family support are all reasons why the Court is seeing an increase in relocation applications. The financial and emotional pressure of separation often leads parents, and in particular those with primary care of children, to see relocation as a possible solution. Relocation applications, however, are particularly difficult to determine, and it is therefore essential that such applications are carefully prepared.

What happens if a parent unilaterally relocates with the children after separation?

Relocating children without the unequivocal consent of the other parent or Court Order, may result in an urgent application being heard by the Court for the children's return to their usual place of residence.

In circumstances where a parent has unilaterally relocated with the children, there is a strong risk that the Court will Order that the children be returned, so that the Court can determine their living arrangements.

Can the Court restrain a parent from changing a child's residence?

The Court does have the power, on a temporary and final basis, to restrain a parent from changing a child's residence, or restricting the geographical area in which a child can live.

In exceptional circumstances, the Court can also make Orders restraining a parent from relocating.

How are relocation cases determined by the Court?

In determining relocation cases, the Court must consider the best interests of the Child, by giving careful consideration to the proposals of each of the parties, and following the pathway set out in the Family Law Act.

Relocation cases are not a separate category of parenting cases, and the Full Court has confirmed that the Court must not treat relocation as a "discrete issue". The Court is also not confined to the proposals of the parties, but is required to consider all possible options when a parent is seeking to relocate with children.

Why are relocation cases so difficult?

The Court is often reluctant to make Orders permitting relocation.

It is difficult to reverse such a decision, without creating further instability for a child. Relocation requires several major adjustments for a child, including a new home and a new school.

A child who has relocated also needs to become familiar with being separated from the non-resident parent. For a younger child, this may mean that the relationship with the non-resident parent does not have the solid foundations needed for the child to comfortably and easily spend time with the other parent away from their primary base. The change/potential reduction in time for an older child may make it more difficult for the child to continue to have a meaningful relationship with the non-resident parent, and the child may mourn that loss.

What to consider when preparing for a relocation case

If a parent is seeking to relocate, it is important to establish a link between the parent's wish to relocate, and the welfare of the child. To do this, the proposal to the Court must be detailed, clear and specific, and not speculative. The evidence must support a finding that an improvement in that party's situation, by relocating, will impact positively on the child.

In the decision of Andris & Dellis [2013] FCCA 414, the court set out a list of questions which may be useful to consider when preparing for a relocation case:

  1. Was there an equal time arrangement or a significant and substantial time arrangement in place prior to the proposed relocation?
  2. Is there a "fragile or tenuous" attachment to the non-relocating parent?
  3. Is the relocating parent "idealistic" in relation to what might be gained from relocating, and do they have the resources or ability to "turn the vision into a reality?"
  4. Does the relocating parent have established supports in the proposed new location?
  5. Does the relocating parent have mental health or substance abuse issues?
  6. Is the relocating parent realistically able to fund the planned contact visits with the non-relocating parent, as proposed?
  7. Has the relocating parent been supportive of the relationship between the children and other parent in the past?
  8. Is there a history of extensive conflict between the parents?

If you are going through a relationship breakdown and are considering relocating overseas with your children, we recommend that you seek appropriate legal advice. The Lander & Rogers Family & Relationship Law team is able to offer practical advice to assist in your court proceedings.

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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Collette McFawn

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Skye Owen

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