Relocating with children after separation

In today’s multicultural and mobile society it’s becoming more common for a separated parent with primary care of their children to want to move to another part of the state, country or overseas. The less frequently considered side of this is whether it is reasonable to disrupt the other parent’s relationship with their children because of one parent’s desire to move away from where they lived as a family.  

Unfortunately, disputes over the relocation of a parent with their children are becoming more common.  

When considering children’s matters, the Family Law Act (Cth) 1975 prescribes that the court must have the best interests of the children as its paramount consideration.  This may not always be aligned with the wishes of the parents and what they believe will make them happy.

“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”  U v U [2002] HCA 36 Gummow and Callinan JJ.

There are some very clear cut cases where relocation is necessary and deemed to be in the best interests of the children for example, where a child suffers from a medical condition and treatment is not available in their rural residential location.

An example where relocation might be acceptable is where the parent without primary care, who spends time with their children only during school holidays, has relocated away from their residential rural location and the primary parent and children also move to another location. This situation may be agreeable if there is no significant increase in travel costs involved for the parents as it doesn’t impact on the time the children spend or would have spent with their non-primary parent.

Other cases however are particularly difficult, hard fought, and controversial with a higher degree of complexity than ‘usual’ parenting matters, and are difficult to settle.  These cases concern children who spend significant time and have a close relationship with each of their parents.  The presence of extended family members, their role in caring for the children and the children’s relationship with them is also of relevance. 

If you are the parent who is wishing to relocate, you must consider how your relocation will affect the children’s relationship with their other parent.  If the children are younger than 12 years of age then an interruption in the time they usually spend with their other parent will have a long term and significant effect on their relationship.  Children older than this may have already built a strong bond with their non-primary parent and not seeing them weekly will not necessarily have an impact on this relationship.  As children get older, they are also better able to independently communicate with others, including relatives, thus maintaining a close bond and relationship.

A relocation with children overseas is a much more difficult and complex decision as it involves a possible change in culture and language and there may be political instability in the chosen country.  Often we see a primary parent who wishes to relocate back to their own country of origin where they have relatives and a support network but this may not be the children’s country of birth, or even a place with which they are familiar. There are many factors to consider in these cases including those mentioned above as well as the economic circumstances of the parties, their ability to fund the children’s future travel between countries to see the other parent and their willingness to assist in keeping up the relationship of the children with the ‘left behind’ parent.

Taking children out of the country and keeping them there against the wishes of the other parent involves additional issues, some of which require urgent action. For example, the laws in some other countries do not allow for much recognition of rights and principles which are fundamental to family law in Australia.

If you are considering relocating with your children or you believe the other parent of your children wishes to do so, or has done so, you should speak to a Family Law specialist immediately.  Relocation disputes often find their way into the Court and can then take a significant period of time to resolve so it’s important to get legal advice as soon as you can.

Practice Area: Family Law

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