One of the most difficult issues after a relationship separation is when the care-giving parent wants to relocate with the child. “Relocation” is the term used where the caregiving parent wishes to move the child’s residence to another town, State/Territory or country. Relocation is a serious matter where the move will result in the non-relocating parent’s time with the child being reduced or restricted.
Where separated parents agree on relocation, the agreement should be formalised with Family Court consent orders, but any written proof of agreement (eg letter, text message or email) can be useful evidence of parental agreement.
If agreement can’t be reached regarding relocation, then the parent proposing relocation should make an application to the Court seeking an order permitting the parent to relocate with the child.
If the caregiving parent relocates without agreement and without a Court Order (“unilateral relocation”), the other parent may apply to the Court for the child to be returned.
Cases involving the relocation of children are often difficult for the Court to decide and will be considered on a case by case basis.
When making a decision in relation to a proposed relocation or a unilateral relocation, the Court considers a number of different factors. The Court’s paramount consideration is the best interests of the child, but this is not the only consideration.
Some of the matters that should be given careful about in relation to a proposed relocation include:
- The need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
- The benefit of the child having a meaningful relationship with both parents. This requires the Court to consider things such as the intended location for the child – the greater the distance between the two parents’ homes, the greater the effect on the time the child spends with the other parent.How will the move impact the child’s relationship with the non-relocating parent? The Court is less likely to oppose a relocation where the non-relocating parent has had little meaningful contact with the child
- The child’s views, depending on the child’s age and, maturity.
- The reason for the relocation. The parent doesn’t require a compelling reason to move, but the reason for moving is important.A sound emotional or economical reason for the move will attract more weight than a whim. Sound reasons include moving for family support, better job prospects or educational needs.
- The relocating parent’s “freedom of movement” is relevant, particularly where the Court refusing a parent’s wish request/decision to relocate may negatively affect the parent’s state of mind and mental health, affecting their ability to parent the child.
- The cost and practical difficulty of the non-relocating parent spending time/communicating with the child after the move. Can technology be used to facilitate the child’s relationship with the non-relocating parent? Who will be responsible for handover including the time and costs of travel?
- The Court will also consider the competing proposals of the parents in relation to the child. Each parent’s proposal should cover how they will care for the child and how the other parent will spend time with the child. Proposals for the other parent’s time should be practical and workable.The Court will consider the family and support network available to the child and parent and whether other siblings will be relocating. Thought should be given to the proposed school and daycare. The child’s sporting, religious and cultural needs may also be relevant considerations.The Court may also consider whether the parent opposing the relocation could move to the proposed town as well.
Although the Court considers each parent’s proposals, the Court makes the orders it considers in the child’s best interests. It doesn’t have to choose either parent’s proposals and can order something different. It is possible that the end result are orders that neither parent is particularly happy with.
If the Court decides a unilateral relocation shouldn’t have occurred, the Court will order the child to return to the original location. The Court may give the caregiving parent the option of returning with the child or may order that the child live with the other parent.
The above matters are only a brief, generalised discussion of some of the matters the Court will consider. It is not a comprehensive discussion of all possible factors. Each case is considered on its own facts and merits, in an attempt to balance the child’s best interests with the competing wishes of the parents.
Any parent considering relocation (or any parent wishing to prevent a relocation) should obtain legal advice at an early stage to determine the best course of action for their individual circumstances.