Relocating with Children

Posted on 19 October 2022

Geoff Munce

Will the move have an impact on the children’s relationship with the other parent?  

There is a Family Law presumption that both parents have equal shared parental responsibility for the major long-term decisions of your children. This includes moving a significant distance with children that will impact the children having a meaningful relationship with the other parent or other important people in the children’s lives.

It is important that these discussions occur, and an agreement is made between parents before any relocation occurs.

What happens if parents cannot agree?

Agreements cannot always be reached. Sometimes, parents are in high conflict or there has been significant family violence. Where an agreement cannot be reached then you will need to apply to the Federal Circuit and Family Court of Australia to have the Court decide.

It is always important to consider:

1. Applying to the court can take many months before a decision is made.
2. There is no guarantee that an order will be made by the Court allowing the move to occur.

How does the Court decide?

The paramount consideration of the Court is the best interests of the children. They will consider:

1. The quality of the pre-existing relationship between the children and the other parent on its own merit.
2. Was the decision to move done so in consultation between the parents, or unilaterally by one parent.
3. The distance and permanency of the move.
4. The financial capacity of each parent to facilitate a meaningful relationship.
5. The ages of the children and their connections to school, and relatives.
6. Is or was there any family violence.
7. Are there any existing orders in place.

In the case of Campbell & Spalding [1998] FamCA, Justice Warnick explained “In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”

What happens if I just move with the children?

If you decide to move without the other parent’s consent the other parent may apply to the court seeking a recovery order to have the children returned. The Australian Federal Police or State Police are usually involved in the return of the children, in the event such an order is made.

Other considerations

In addition to a recovery order being made you should consider:

1. The financial impact. You may have signed a new lease, paid for removalist, and enrolled the children into new schools. If the court makes an order to return, you may be left out of pocket.
2. If an order is made to return the children, you will be financially liable for the cost of returning them.
3. If there is an existing court order in place not allowing you to relocate, it is likely you have contravened the order unless there is a reasonable excuse for the relocation.
4. The court can order that the children live with the other parent in certain circumstances.

 

What to do next?

Before deciding whether you should relocate, contact us for a free confidential chat.

Contact Omnia Legal today for your complimentary consultation to discuss your business needs.  

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This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.