Considering moving with your kids interstate after separation? Can you do it? The short answer is yes, you can. However, if you decide to leave straight away without talking it through with your ex, chances are high that you will be served with a Court application for recovery orders. If you’re thinking about relocating with children, you should obtain specialist legal advice from a family lawyer. What may be suggested is if you’ve commenced Court proceedings to work things out with your ex, this is usually called a relocation case.
A simple run-down of most family law Court proceedings is:
- One parent files an application and a supporting affidavit saying:
- All the good things about them as a parent;
- All the bad things about the other side as a parent; and
- All the reasons why the Court should grant what they seek in their application.
- That paperwork gets served on the other parent informing them of the Court date and inviting them to file their responding materials.
- The other parent files a response and a supporting affidavit saying;
- All the good things about them as a parent;
- All the bad things about the other parent as a parent;
- All the reasons the Court should endorse their application.
- The matter is then listed before a Judge for an interim hearing.
In due course, there will be a Family Report and independent evidence available to ascertain whether the children’s best interests are being considered and the changes required in order to do so. These are needed because in the beginning of proceedings, it’s so hard for the Court to identify the ‘real story’ as distinct from the ‘he said she said’. Many judicial officers have lamented the lack of objective or even agreed evidence available at that stage in the proceedings. The Court is not able to make findings of contested fact at this stage and must decide based on what reliable evidence is available; sometimes very little.
In a relocation case, where one parent wants to move with the child or children away from their current place of residence to a place far enough away that the current care arrangement would be impractical, the task is even harder.
In those cases, the Court takes a cautious and conservative approach. Two helpful cases in support of that are:
Morgan & Miles, where Justice Boland said,
“It appears to me that the very difficult issues in cases involving a relocation…make it highly desirable that except in cases of emergency the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.”
C & S, where Justice Warnick said,
“In my view it is clear that the interests of any child or children… 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 or 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… I believe the standard to be applied on an interim decision is even more stringent than on a final basis.”
One of the rationales for this is that it would be very unsettling for the children and the parties if the relocation was permitted on an interim basis but refused on a final basis, so the family moved and then had to move back.
So, what does this mean? Sometimes the Court cannot facilitate a final hearing for more than 12 months after the proceedings commence. Do you need to wait until the final hearing? Here are three tips:
- Don’t relocate without permission. This rarely helps (unless you and the children are victims of family violence; that is another issue). Certainly, don’t relocate without getting legal advice first from a family lawyer;
- If you are seeking to move on an interim basis your evidence needs to justify why you have to move now and can’t wait for the full forensic enquiry of a final hearing;
- Make sure you have explored every alternative to your interim application including seeking expedition of your final hearing and speak to your lawyer about alternatives.
If you need advice about relocation or think your current lawyer hasn’t considered everything they should have, call our team on (03) 9793 7888 or email at admin@justfamilylaw.com.au and we will book you in for an appointment to help formulate the best plan for your circumstances.