I want to move with the children. Can I?
Like most family law questions, the answer to the question of whether you can move with your children is, it depends. It depends on a variety of factors specific to your family situation including, where you currently live and where you want to move to, why you want to move, what benefits there are to the move to you and the children, what the current parenting arrangements are, how old the children are and whether and how a relationship will be maintained between the other parent and the children.
The Family Law Act 1975 (Cth) (Act) does not specifically refer to the difficult subject of relocation. Despite lawyers often referring to “relocation” cases, there is no such thing a “relocation case”. Lawyers can disagree as to whether a proposed move is a relocation or simply a change of suburb.
In a recent case we acted for a mother who wanted to move with her children around 30 kilometres away from her current home (and 77 kilometres from dad’s home). Dad opposed the move arguing that mum sought to “relocate” and that was an important issue to be decided at a final hearing, rather than on an interim basis. The court said that rather than dad focusing on the distance between the parents two homes, the real issue to be considered was the impact of the move on the current parenting arrangements. Dad already lived around 45 minutes to one hour and 5 minutes away from the children, and mum’s proposed move only increased the travel time by around 10 minutes. Also, dad was collecting the children from childcare and a changeover location neither of which was going to change. The court did not agree that this was a relocation and allowed mum to move with the children.
When determining relocation issues:
- The court cannot separate the issue of relocation from what parenting arrangements are in the best interests of the children.
- The parent seeking to relocate does not have to provide compelling reasons for or against the move.
- The best interests of the children need to be considered and balanced against the legitimate interests of both the parent who wants to move and the parent who opposes the move. If there is a conflict between these considerations, then the children’s rights and best interests are the priority.
- Neither parent has the onus of proving the move is a great idea, or conversely, that it is a bad idea.
- The parent seeking the move must show that the post move arrangements will be in best interests of the child.
Interestingly, the Court is not bound to grant the orders sought by either parent. When considering all the specific facts of a case, the court can make any orders it regards as in the children’s best interests, even if neither parent has proposed those arrangements (and as long as the court has given the parents the opportunity to respond to the arrangements the court proposes). That is the case in all parenting matters before the court but can be particularly jarring in relocation matters when the court is often faced with two quite stark choices between a parent wanting the children to say put and another proposing a move to another state or country.
The High Court has said that the proper approach in a relocation case is to weigh the parent’s competing proposals and consider all other relevant factors, including a parent’s right of freedom of movement “bearing in mind that ultimately the decision must be one which is in the best interests of the child”. Parents are oftentimes shocked that they do not necessarily have the right to live whether they please. The tricky task for the Court is to balance a parent’s freedom of movement against the welfare and best interests of the child.
Important factors to consider in relocation matters can include:
- Which parent has been the child’s primary carer and attachment figure, including what the impact will be on the child from separation from either parent.
- The effect on the relationship between the children and the non-moving parent. A relocation by its very nature will impact that relationship. The question for the Court is not whether an optimal or ideal relationship can be maintained, but whether the move will result in a complete termination of the relationship due to the extreme distance, limited finances and practical difficulties or the moving parent’s inability or unwillingness to foster and support the relationship.
- The ability of the moving parent to maintain and support the child’s relationship with the other parent. Consideration must be given as to how the child will maintain their relationship with the other parent, for example, are there realistic and affordable proposals for travel and spending face to face time together.
- The family and other support structures for the children and the parents in the current location as compared to where one parent proposes to move. The structures and supports available to the primary parent will likely carry more weight than those of the other parent.
- The age of the children; the younger the children the more likely it is that a move will not be permitted as the children may not have had the time to form a lasting bond that will withstand the relocation. It is rare that parents with children under four years of age will be allowed to move.
- The possibility of the other parent also relocating. If this is a realistic option, it could make the case to relocate stronger.
- The reasons why the relocation is a good idea, which can include but are not limited to:
- Better employment, wages or career advancement.
- Lower cost of living due to lower rent or house prices, family support or just a cheaper area in which to live.
- Better education opportunities for both the moving parent or child.
- Improvements to the mental health of the primary parent arising from any of the above factors or increased social connection and family support, and the consequent benefits for the child.
Relocation matters are always finely balanced and usually are the cases that will be determined by the Court, rarely settling via negotiations or mediation.
At Empower Family Law & Mediation we have a track record of successfully assisting our clients to relocate with their children, or to resist relocation applications where it is not in the children’s interests to be relocated.
We have the expertise and experience to negotiate your child relocation case and to optimise your prospects of achieving the outcome you want.
From your very first conference with us you will know where you stand, what your options are and what to expect.
That is why your first 30-minute consultation with us is FREE.