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My partner and I are separated and I want to relocate with our child. What now?

Following separation, a parent may want to move to another town, city, state or even country with their child or children. This usually means moving away from the other parent. Under the Family Law Act this is called relocation.

Relocation is a very common issue in family law cases. A parent may want to move for many reasons, such as a new job, housing affordability, better educational opportunities, or to be closer to family members. In some cases, the move may be driven by a desire to distance oneself from the other parent, particularly where there is a history of domestic violence and/or safety issues.

If a parent wants to relocate with a child, they must obtain the other parent’s consent or seek approval from the Federal Circuit and Family Court of Australia. If you can agree to the relocation with the other parent, it is best to get this agreement in writing through a parenting plan or, better, obtain consent orders before you move.

If there is no agreement, you can apply to the Court for a relocation order. The parent not moving  can object to this.

Factors the Family Court will Consider

The Court will consider various factors when deciding whether to allow the relocation, including:

  1. The reason for the move;
  2. The impact on the child’s relationship with the other parent;
  3. The impact on the child’s education, social life, and other aspects of their life;
  4. The distance of the move;
  5. The ability of the non-relocating parent to maintain regular contact with the child;
  6. Any history of domestic violence or abuse;
  7. How the moving parent will facilitate the other spending meaningful time with the child.

Ultimately, the Court will make a decision based on what it deems to be in the best interests of the child. However, that is not the only factor. Recently the Court has considered the importance of the parent’s happiness.

Example of a successful relocation order

Rosa’s Case is a leading authority in Australian Family Law on relocation. In this case, the mother brought a case seeking orders that she relocate with her 5-year-old child to Sydney from Mt Isa. Prior to separation, the family had moved to Mt Isa for the father’s new job and had only lived there for 7 months. While the mother lost her initial application, she won the application on appeal in the High Court. In the mother’s initial application, the Family Consultant recommended the child should stay in Mt Isa as it would not be beneficial for the child to live so far apart from the father. The initial judge ultimately concluded that the child should stay in Mt Isa as this would be in the child’s best interests. On appeal , the High Court examined the decision and looked at the circumstances of the mother and if the mother relocating provided the best outcome for the child. In Mount Isa, the mother had to live in a caravan park and had limited opportunities for employment. In Sydney, the mother had work opportunities with flexible hours and access to her family support. The mother’s application for relocation was successful in the High Court, and she was given relocation orders to move to Sydney.

What should I consider before I relocate?

If the Court approves a relocation, it may vary any existing parenting orders to reflect the change in circumstances. For example, it may adjust the orders for the time each parent spends with the child or order the relocating parent to pay for transportation costs to enable the non-relocating parent to spend time with the child.

Practical considerations really need to be thought through before any approach to the other parent before asking for consent to relocate or before asking a Court to make relocation Orders. Before you take one of these steps, you need to show you understand the child’s right to a meaningful relationship with the other parent. For example, if you do relocate:

  1. Do you offer Facetime/Zoom meetings between the parent not moving and the child;
  2. Do you offer some blocks of time during the school holidays that are more extensive than the current arrangement;
  3. Do you offer to pay some travel costs to facilitate the child spending time with the parenting not moving;
  4. Do you offer the parent not moving to come to your new location to see the child for some block time.

Every case is different, with the current regime you have in place prior to any relocation as a starting point for discussions with your lawyer about what to propose specifically.

If you require any legal assistance applying for a relocation order through the Federal Circuit and Family Court of Australia, we can help. Our family lawyers are experienced in dealing with a variety of family law issues, including separation and divorce and international family law.

Important Disclaimer: The content of this article is general in nature and for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.



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