Can I relocate with the children after separation?

Can I relocate with the children after separation? It’s not unusual for one parent to consider this. This could be to another suburb, interstate or even overseas. If you find yourself in this position and you are the primary caregiver for any children of the relationship, you may need to apply to the Federal Circuit and Family Court of Australia (“FCFCOA”) for a relocation order if you cannot come to an amicable agreement with your former partner.

Amendments to the Family Law Act 1975 (Cth) (’the Act’) in 2006 and the introduction of the Family Law Amendment (Shared Parenting Responsibility) Act 2007, encourage a greater level of shared parenting and emphasise the importance of children maintaining a relationship with both parents, in the absence of violence or abuse.

If you have separated and wish to relocate with your child or children, this could mean that your former partner’s time with them may be reduced; a result they may not be willing to accept. Therefore, you may need to prove that relocating will better meet your children’s needs.

Relocating to another suburb or interstate with your child

You and your former partner should make genuine efforts to come to an agreement about your relocation and make the appropriate arrangements for the care of the children. The best interests of the children should be paramount when making these arrangements.

If you both agree, you are encouraged to put this agreement into writing in the form of consent orders and bring it to the FCFCOA to make it binding.

If you cannot agree, you should consult a family dispute resolution service who will help you both to create a feasible plan of relocation. If you do not reach agreement, you will need to apply to the FCFCOA for a relocation order.

The court’s approach to child relocation applications

Since the 2007 decision of the Full Court in Taylor v Barker, the court’s approach to child relocation applications has involved:

  • considerations of the benefits to the child of having a meaningful relationship with both of the child’s parents;
  • considerations of the best interests of the child; and
  • considerations of the time the child will spend with each parent.

The court will weigh up reasons for relocation provided by you and counter-arguments from your former partner.

In Babcock v Waddell [2019], a case involving an application for child relocation from Sydney to Perth, the court turned its mind to the following questions when deciding whether to grant the application:

  • Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the other parent or other person from the child’s life?
  • Is the application realistically founded on practical proposals (both well researched and investigated)?
  • In future, if the other parent becomes a single parent or a spouse in a new relationship, would it detrimentally impact them if the children relocate?
  • Is the other parent’s opposition to the relocation motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
  • Where the relocation is interstate, what is the likelihood of the other State’s courts working with the previous State’s courts to make sure ongoing family support and child contact orders are adhered to after the relocation?

Relocating to another suburb within the State (“intrastate”)

Obtaining court permission to move intrastate is usually easier than seeking approval for interstate or international relocation.

In Richter v Richter (2019), a mother was seeking an order in the Federal Circuit Court of Australia to relocate her three children (who all had autism spectrum disorder), from one town to another in regional Victoria.

One child was severely intellectually disabled, and the mother was his primary caregiver from birth. The court granted the mother a relocation order based on the following factors:

  • There were health benefits to the children moving to the new town which had more facilities than those present in the town that they were living in at the time.
  • The children would benefit from a college education in the new town and would still be able to continue their extracurricular studies and holiday activities.
  • The mother had been the sole provider for the children’s emotional, medical, and intellectual needs since birth and the father had only become involved in the children’s co-curricular activities in the last year.
  • The father insisted that the children stay with him on his farm which was not reasonably practicable for their future goals.
  • The four-hour drive and distance that the father would need to travel from the town he lived into the town that the mother wanted to relocate the children to was irrelevant and did not significantly impact the carrying out of parenting arrangements by the father.
  • The mother agreed to allow the father to spend plenty of time with the children.
  • There was also flexibility and freedom given to the father to telephone and/or video call the children.

Relocating interstate

Recent interstate child relocation cases have demonstrated that the court critically evaluates the assessment of benefits and risks in a relocation application.

In Brooker v Potts [2019], the mother wanted to relocate her child from South Australia to Victoria after separation. She alleged that the father was an abuser of illicit drugs and because he had been violent over many years towards her, she was fearful for the child’s safety if the child was to live with him.

However, the mother relied on a family violence order against the father which was made prior to the date on which the parties married and prior to the birth of the child. Consequently, the family violence order was not effective to prove that the father was violent to the child.

The court did not find a “need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence”, which is a consideration in section 60B of the Act to be taken into account when deciding the best interests of the child. The court found there was no significant assessment of risk and rather, the child’s relocation would result in the “severance of any effective level of relationship between the child and the father.”

The court did not grant the mother a relocation order and instead, she was ordered to return the child to South Australia, to a location within a 10-kilometre radius of the current residential address of the father.

This case highlights how courts will scrutinise the particular facts and circumstances of each case when determining whether to make a relocation order.

A significant change in routine or a potential deterioration of the quality of the existing relationship between the child and the other parent are examples of factors that will discourage the court from granting a relocation application.

Things to be aware of when considering relocating with your children

If you are considering relocating with your children and you are separated from the other parent, you should be aware of the following:

  • Regardless of whether you have equal shared parental responsibility with the other parent, when applying for a relocation order, you will most likely be responsible for the cost of any intrastate travel expenses, as well as return domestic interstate flight fares, to allow the children to travel to visit the other parent.
  • If you are required to pay child support and your payments are not up-to-date and you are not willing to make the necessary payments in the near future, the court can, in some cases, issue a Departure Prohibition Order prohibiting your children from leaving the State.
  • If the court grants you a relocation order, it may order that some or all your previous parenting orders and arrangements be discharged and new orders and arrangements be made. A family dispute resolution service will help you and your former partner create a non-binding parenting plan. If you both cannot reach an agreement on arrangements for your child after relocation, you will need to apply to the court for a parenting order which is binding on both parents.
  • If you relocate your children without consent from the other parent in breach of any current Parenting Orders or without seeking the court’s approval, the other parent may apply to the court for either a Personal Protection Order seeking to protect your children from you and preventing your children from leaving, or a Recovery Order to have the children returned.

How we can help

We can advise you on the best course of action when it comes to:

  • obtaining consent to relocate your children; or
  • preventing your former partner from obtaining a child relocation order or relocating your children without your consent.

We can also help you draft the Consent Orders and file them on your behalf.

Our approach is to try to negotiate a mutual outcome where possible and only instigate court proceedings as a last resort or where it becomes necessary for the child’s safety. Give our team a call on (03) 9793 7888.