Relocation after separation

Relocation after separation: moving to a different area with your children

The court’s primary consideration in any proposed relocation order sought, is the same as in all other parenting orders: whether an order for, or against, relocation, is in the best interests of the children. You and your partner may have only just separated, or you may have been separated for years. If you wish to move to an area that would, for example:
– Decrease practicality to continue existing parenting arrangements, or reduce the practicality for substantial and significant time if the separation is recent and an ongoing arrangement has not yet been established; and/or
– Reduce your former spouse’s time they currently spend with the children; and/or
– Increase travel time;
then you should obtain legal advice before taking any irreversible steps, such as paying a rental bond, particularly if your former partner may be opposed to the relocation.

The best interests of the child will always be the primary consideration over and above the preferences of each particular parent. The Court is only concerned with arguments from each parent as to why a parent should or should not be permitted to move, insofar as they relate to the best interests of the child. In saying that, the court is not obliged to completely ignore parents’ legitimate interests and desires. However, where there is any conflict between what a parent wants, and the best interests of the child, the court will always regard the children’s best interests as more important.

Any proposed new arrangement that will affect a child’s residence or contact with the other parent, including an overseas move, must be shown to be in the best interests of the child. You will need to demonstrate factors that outweigh any resultant decrease of the other parent’s time or involvement with the children. Issues the courts may consider under s60CC of the Family Law Act 1975 include:
– Whether there is family support in the proposed area you wish to relocate to;
– Long-term stability for the children moving forward (for example, you may be seeking to purchase a property, and cannot afford to do so in a city, but have sufficient funds to buy a property in a smaller town); and
– If the area you currently live in is isolated, and as the primary carer for the children, you have little support, it may be that your overall health and happiness would be improved by a relocation to an area where you have family connections.

If you discuss a proposed relocation with your former partner, and they disagree, they may commence proceedings against the move you are hoping or planning to make. If you go ahead and move with the children without consulting the other parent, or against their wishes, you will be making a unilateral decision. A court may order you to return with the children if there were not circumstances warranting such actions (such as a risk to your and/or the children’s safety).

Courts are only to make coercive orders in extreme circumstances, and alternatives to restricting freedom of movement must be explored, particularly where an order would be made that would cause a primary carer to undertake the role of being primary carer in a place that is not their choice.

Mareet & Colbrooke [2019] is a recent decision that has emphasised it is only in rare circumstances that the Court should make orders about where a parent shall live (which directly affect a parent’s right of freedom of movement). A mother had signed a lease and moved interstate to QLD whilst pregnant. She alleged the father had stalked and harassed her. The father made an application and the mother was ordered to reside in a region in NSW so the father could spend time with the child at a contact centre. The mother’s appeal was allowed: the Judge had not considered making orders that the father travel to QLD to see the child, nor of the financial and other burdens on the mother resulting from the ordered move, and other things (including that the area the mother was ordered to move to was not an area in which she or the child had previously resided).

If you wish to move and you think your former partner will not be agreeable, we can advise you on a likely outcome and the best way to move forward based on your circumstances.

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