My bags are packed, I’m ready to go. Should I stay or can I go?

In Brief

After sep­a­ra­tion, it is not unusu­al for one par­ty to want to move from the city or town in which the fam­i­ly resided, to anoth­er city or state – often to return to the par­en­t’s own fam­i­ly of ori­gin. This is called relo­ca­tion in fam­i­ly law.

In almost all cas­es, the move will, because of the dis­tance, make it more dif­fi­cult for the oth­er par­ent to spend time with, and be a part of their child’s life. The par­ent who wants to move should not just pack up and go — they need to dis­cuss it with the oth­er par­ent first.

What should you do first?

You should approach the oth­er par­ent about your pro­posed relo­ca­tion. You pro­pos­al should cover:

• how the chil­dren will spend time with the oth­er par­ent – do you pro­pose longer blocks of hol­i­day time? Is the oth­er par­ent wel­come to see the chil­dren in your pro­posed location?

• facil­i­ta­tion of reg­u­lar com­mu­ni­ca­tion via Skype, Face­time, or oth­er elec­tron­ic means – how often?

• where you will reside with the children.

• what school/​s you pro­pose the chil­dren attend.

If we reach agree­ment what should we do?

You should either enter into a par­ent­ing plan or new Orders before you move. At a min­i­mum, you should obtain the oth­er par­en­t’s con­sent in writ­ing (this may include by email or text mes­sage), before you leave.

What if we can­not reach agreement? 

If you can­not agree on new arrange­ments the only alter­na­tive is to approach a court for per­mis­sion to go. This can be a lengthy process. There is no guar­an­tee that your mat­ter will move through the Court sys­tem more quick­ly, on the basis of your pro­pos­al to relocate.

If you are the par­ent stay­ing behind and antic­i­pate that your for­mer part­ner is going to relo­cate with­out your agree­ment, you need to com­mence pro­ceed­ings quick­ly, to restrain your for­mer part­ner from relo­cat­ing with the children.

How will the court decide?

The court will always deter­mine what is in the best inter­ests of the child before agree­ing to the par­ent mov­ing. The court will not always grant per­mis­sion. They will weigh up the com­pet­ing pro­pos­als of mum and dad and con­sid­er 4 options in mak­ing par­ent­ing orders:

• Both par­ents remain­ing in the cur­rent location;

• Both par­ents mov­ing to the pro­posed new location;

• The relo­cat­ing par­ent going, and the chil­dren remain­ing behind with the oth­er parent;

• The chil­dren relo­cat­ing with the relo­cat­ing parent.

In one relo­ca­tion case the moth­er want­ed to move inter­state to Vic­to­ria with her 6 ½ year old daugh­ter to care for her moth­er who was ter­mi­nal­ly ill. In that case the court allowed the moth­er to move after considering:

• The effect on the moth­er if she was not allowed to move;

• The abil­i­ty of the child to main­tain a rela­tion­ship with both her father and her pater­nal grand­moth­er even if she moved;

• The desir­abil­i­ty of the child devel­op­ing a clos­er rela­tion­ship with her mater­nal grand­moth­er (she already enjoyed a close rela­tion­ship with her pater­nal grandmother);

• That the moth­er had a job lined up in Vic­to­ria and no employ­ment in Sydney;

• The moth­er’s need to have emo­tion­al sup­port from her fam­i­ly in Vic­to­ria giv­en the feel­ings of lone­li­ness and iso­la­tion she expe­ri­enced in Sydney;

• The father’s con­cern about a per­ma­nent relo­ca­tion, the fact that he could not move to Vic­to­ria and that he would not see his child every alter­nate week­end but rather main­ly blocks of time in the hol­i­days and

• The court found that the 6 ½ year old would be able to main­tain a close rela­tion­ship with her father even if she only saw him for extend­ed times over school hol­i­days. Con­sid­er­ing all the issues the court found that it was in the child’s best inter­ests to live with her moth­er and that they would be able to relocate.

Equal­ly, in oth­er cas­es the relo­ca­tion has not been per­mit­ted, where it was not con­sid­ered in the chil­dren’s inter­ests to move to a new loca­tion and be sep­a­rat­ed from the non-relo­cat­ing parent.

You should obtain legal advice about your indi­vid­ual cir­cum­stances and prospects of suc­cess, before leav­ing with the children.