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Relocating Children in a Separated Family

Moving around the corner, interstate or overseas can be a big thing. From the excitement of a new home to organising the movers, there is a lot to think about for everyone. For some people there is the added complication of separated parents care arrangements for children. Pursuant to the Family Law 1975 the best interest of the child is the paramount consideration of the Court.  But what does this mean in the context of relocation?

Things to consider in your plan to move:

As well as thinking about housing arrangements, new schools, logistics and the other usual matters, for a separated family where both parents are involved in the care of any child there is also the matter of how a move may affect the other parent’s involvement with the child. 

If you are a parent or guardian of a child and you wish to move to a location that will affect the agreed care and education arrangements with respect to your child you must consider the impact it will have on everyone and overall be able to assure yourself that your reasons for moving are in the best interests of the child.

Any relocation that will impact the child and the other parent and their ability to spend time with the child should only be made with the other parent’s agreement. If there are parenting orders in place that specifically state you must not move, or the child must attend a particular school, or any other matter that will not be able to be followed if you relocate, you will need to have this order varied by either a parenting plan or subsequent Order of the Court.  Prior to an agreement being reached or an Order of the Court you must ensure that you comply with any Order of the Court that is not jeopardising the best interests of the child.

What happens if the other parent agrees that you may move?

If the other parent agrees to your relocation, and you are able to work out new care arrangements for the child, your relocation will be an easy affair.  We recommend that you ensure that you have an agreement in writing between all people with parental responsibly for the child prior to making any significant steps towards relocation, such as changing the child’s school, giving up a lease, selling real property or resigning from / accepting a job.

If you are moving overseas and the child does not have passports, all people with parental responsibility will need to sign the passport application form for the child.

Our team of family lawyers are able to assist you with any legal issues relating to your relocation that you may require.

What if the other parent does not agree to your relocation?

If you are moving around the corner, there is no Court Order which prevents you from moving and the implementation of the existing arrangements will not be affected it may be that you are able to move without the other parent’s consent.  It is still advisable that you tell them of your intentions to move. We recommend that you obtain legal advice if complications arise or if you are unsure whether your move could put you in breach of a Court order.

If you are planning a bigger move that will affect the current care arrangements in place for the child you will need to either work out an agreement with the other parent or make an application to the Court.  If you and the other parent are having difficulty talking about your move you could attempt to utilize the services of a mediator.  This could be a private mediator or a mediator through a service provider such as Anglicare or Relationships Australia (SA).

If mediation is unsuccessful we recommend that you consult with a lawyer regarding your move.   You can contact our family lawyers by telephone on 08 8410 0211 or by email through this website. If you are unable to negotiate an agreement with a lawyer engaged you will need to consider making an application to the Court.

What will the court take into account when deciding if I can move interstate/overseas?

When considering a relocation application the Court will look at the child’s best interests.  In determining whether the move is in the child’s best interests the Court may take into consideration matters such as:

  • any family violence involving the child or a member of the child's family
  • any views expressed by the child
  • each of the parent’s degree of involvement with the child
  • the child’s relationship with other people, such as family members in either location
  • the  likely effect on the child of a change of circumstances
  • other parents ability to spend time with the child
  • the distance of the move
  • how the relationship can be maintained with the parent that will stay behind
  • the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
  • the maturity, gender, lifestyle and of the child and of either of the child's parents, and any other relevant characteristics of the child

This article is general in nature and is not to be interpreted as legal advice for your particular situation. If you are considering a move and you wish to speak with an experienced family lawyer please contact us and we will be able to schedule an appointment with you to discuss your particular circumstances and any of your concerns regarding a potential relocation.