Circumstances Where a Parent Can Relocate A Child

First published June 9th, 2022

For many parents, whether or not to relocate their children is an emotionally charged issue. The Family Law Act does not have any specific provisions on this topic, so it can be difficult for the court to decide how best to handle cases where a parent wants to relocate with their children.

A case is only deemed a relocation case if the proposed relocation causes substantive changes to the child’s parenting arrangements.

It is important to discuss the proposed relocation with the non-relocating parent and attempt to reach a written agreement that is in the best interests of the child. In addition, the Court will consider whether the plan is fair to the non-relocating parent and should outline how proper family support will be in place for the child if they are moving a long distance from existing family and friends.

It’s also important to document your conversations and correspondence with the non-relocating parent and the reasons for the relocation to help prove your parental responsibility if mediation or court orders are required. If you cannot agree with the other parent, the Federal Circuit and Family Court of Australia will decide on disputes over child relocation orders—either preventing or permitting the child relocation based on the child’s best interests.

There are laws in place to protect the rights and safety of family members when a parent chooses to relocate the children. This article will answer questions like what circumstances are required for a child to move with you, what age they have to be, and what parental responsibilities are required.

What Factors are Taken Into Consideration When Determining if a Parent Can Relocate the Child?

The Family Law Act has an assumed presumption of equal shared parental responsibility when parents separate. In order to ensure that both parents agree on significant decisions in their children’s lives, including ones related to education, religion and where the child lives, they must first apply through court-supervised mediation services to create a parenting plan together.

The list below is not exhaustive, and there are many factors that a court will consider when deciding whether or not you’re allowed to move with your children, including;

• What is the child relocation case and what are the grounds for it being filed?
• Is the relocation in the best interests of the child?
• Will the child have sufficient family support in the new location?
• What are the child’s views, and how do they feel about a relocation?
• Has the relocating parent notified the other parent of their intent to relocate?
• Is there a reasonable plan in place for visitation/time-sharing with the non-relocating parent?
• Will the child relocation have a negative impact on the child’s education, emotional well-being, or relationship with the non-relocating parent?
• How far is the relocation distance—is it across state borders?

Child relocation and parental responsibility are very sensitive topics. Decisions by the Federal Circuit and Family Court of Australia will be determined in the best interest of your children, so it’s important that you research all options before making any decisions.

How Can Parents Negotiate and Reach an Agreement About Relocation?

Your children’s needs must come first when making the decision to relocate a child and how this will affect their future. You and your ex-partner should make genuine efforts to agree on where you will be living and who will take care of them during this time so they can grow up in a caring and supportive home.

If you consider relocating with your child after separation or divorce, it is essential to consider the possible outcomes and plan for them. Seek legal advice early from a family lawyer to ensure unforeseen circumstances do not derail your plans.

The negotiation process can be complicated, so working together as parents means reaching an agreement that allows both parents to maintain a meaningful relationship that works for both parents and the children.

What Happens if the Other Parent Does Not Want to Let the Child be Relocated?

If the other parent disagrees and there have been conflicting arguments between both parties regarding relocating your children, you will have no other option but to apply to go to mediation or court order.

The Federal Circuit and Family Court of Australia have specific guidelines for determining what is in a child’s best interests. Section 60CC and 65DAA of the Family Law Act outline that before moving away from their original home or leaving them with someone else, both parents must be assured they will still spend time together regularly after separation.

The Federal Circuit and Family Court of Australia family require both parents to consult with each other and make a genuine effort to agree on what would be best for the children in any proposed move to a new location. If the parents cannot agree, then the Court will carefully exercise structured discretion when determining what is in the best interests of the child.

How to Present Your Case if You Want to Relocate Your Child?

There are many factors that the Court will consider when deciding whether or not your relocation is in accordance with what’s best for children. Factors range from how much time both parents will be able to spend with them to maintain a meaningful relationship. The Court will want to see if they have any close family and friends nearby who can keep an eye on them and how they will be cared for away from their present living arrangements.

Regardless of whether you have sole custody, the Court will consider whether the relocation will be detrimental to the child’s wellbeing and how the relocation will affect the child’s relationship with the other parent and family members.

Many circumstances are unique to each family, and you will need to consider whether your reasons for moving to another location will negatively affect the child now and into the future. If you and the non-relocating parent cannot agree on the relocation of the child, the first step will be mediation with an accredited mediator.

What Are Some of the Risks Associated With Relocating a Child?

Unless there is a real risk of family violence occurring, you should not relocate without the other parent agreeing to the move. There’s a risk of being issued a Recovery Order by the Court if one parent moves the children without notifying the other parent. The Court will consider whether it is in the child’s best interests when deciding to issue a recovery order, so make sure you talk things over with your family lawyer before making any decisions that could negatively impact them or yourself in the future.

The Family Law Act does not address the problems which arise when one parent seeks to move far away from the other parent if they have concerns over safety or children’s wellbeing. The concern that arises when a parent and their children are at risk of exposure to family violence has led stakeholders to call for more protection in relocation orders. In light of the concerns raised by stakeholders, it is imperative that relocation orders are not being refused when a parent and their children face exposure to family violence.

What Are the Consequences of Relocating a Child Without Court Approval?

If you have an equally shared parenting agreement and are considering moving or travelling with your children without the other parent’s permission, it is important to get legal advice. The laws surrounding moving or relocating children can be complicated, and there are potential risks that exist if action is taken by the other parent regarding their own child(ren) being moved to another location far away from where they were living.

The decision to move with children is one that requires careful consideration. There are laws in Australia about moving without the other parent’s written consent. The other parent can file an urgent court application for a Recovery Order issued in Court to have the children returned to the state or location where they previously lived.

It’s important to understand that if one parent removes the child(ren) to another location a judge can issue an interim court order to have the children returned and once the children are returned the Court will then decide on the best course of action in the best interests of the child. It’s unclear how long it will take for your case to be finalised in Court. The Court will consider each parent’s proposals with respect to parenting and living arrangements.

Do You Need More Information About Relocating a Child?

If you are considering relocating with your child, it is important to understand the law to make the best decision for your family. Contact Sage Family Lawyers, who can help you navigate family law and ensure that your rights as a parent are protected.

Family lawyers specialise in a wide range of family law matters to achieve outcomes that are tailored specifically to the best interests of the child(ren) and your family.

Contact one of our friendly team members on 03 9070 9839 or info@sagefamilylawerys.com.au

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