As Australia and the rest of the world gradually opens following the COVID-19 pandemic, so too does the movement of people across international and domestic borders. The desirability of living in different locations, and the ease with which people can move between foreign and domestic borders, finds families increasingly navigating the complex challenges of being, or the prospect of being, geographically separated.
Before parents take steps to relocate, the party intending to relocate should obtain the consent of the other party. This will inform the party intending to relocate if they will be required to apply to the Federal Circuit and Family Court of Australia to seek appropriate orders permitting them to do so.
If you are intending to relocate with your child, or the other parent is intending to relocate, it is imperative that you obtain legal advice from a family lawyer. If a parent relocates with your child without consent or an order of the Court, it is possible that the child will be ordered to return to their previous residence/region.
Seeking legal advice will assist you to understand your rights, your children’s rights and how the proposed relocation may affect your parenting arrangements moving forward and what preventative actions and steps can be undertaken.
When the Court considers whether it will order to allow a child to relocate, the Court addresses a variety of factors, irrespective of whether the proposed relocation is to another town or city in the same state, or interstate or overseas.
Like all parenting matters, the Court will make an assessment as to what is in the best interests of the child. Although relocation cases are not a special category of case, there is a particular focus on how and to what extent the child will maintain a meaningful relationship with the parent from whom they are moving away.
In its decision-making process, the Court will assess the current parenting arrangements, the proposed parenting arrangements and how any proposed arrangements will work despite the geographical challenges posed by the relocation.
When the Court assesses the practical difficulties caused by the relocation and how this impacts on the child being able to maintain a meaningful relationship with the non-relocating party, the court will consider factors such as the child’s age, the mode of travel and travel time between the child’s homes, the parties’ ability to facilitate any arrangements and overcome the challenges imposed by the relocation, the school at which the child attends and the impact on the child.
Applications by parties to relocate are assessed on a case-by-case basis, having regard to the unique facts and circumstances of each case.
After assessing the child’s best interests and the need for the child to have a meaningful relationship with both parents, the Court may permit a child to relocate with their parent. The Order made by the Court may be prescriptive in nature. For example, the Order may:
In the event that the Court finds that the proposed parenting arrangements are not reasonably practicable, it will not be possible for the child to maintain a meaningful relationship with both of their parents and/or that the impacts of the proposed relocation are not otherwise in the child’s best interests, the Court may refuse to allow the child to relocate.
The decision does not always need to be left for the Court to decide.
Parties should always be open to the possibility that they are able to reach agreement regarding the proposed relocation and parenting arrangements moving forward, without approaching the Court. This can occur through appropriate alternative dispute resolution processes, such as mediation, and with the assistance of the parties’ lawyers.
Our Family & Relationship Law Team at Coulter Legal are experienced in providing advice with respect to relocation cases, including international relocation cases. Please do not hesitate to contact our office to arrange an initial consultation, free of charge, to discuss your personal circumstances and how we may assist you.
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