In family law, one issue which may arise following a relationship separation where children are involved is ‘relocation’. Relocation is the legal term for moving with your child to another town, state or country after a divorce or separation. Relocation may raise issues in relation to parenting arrangements if the moving interferes with the ability of the non-relocating parent to live with or spend time with their child.
It is best that parties try to amicably resolve all issues that will arise as a result of a planned relocation. This agreement can then be formalised in court through the filing of consent orders. If this is not possible, parties may apply to the Federal Circuit and Family Court of Australia for a judicial determination. However, if you relocate without a court order or without the consent of the non-relocating parent, a court may require you and your child to return to your previous location.
The Law on Relocation
Issues around relocation are not explicitly referred to in the Family Law Act 1975. However, the overriding consideration of the Family Court in all matters concerning children, including variations to living arrangements, is determining what is in the best interests of the child. While the issue of relocation is not mentioned in legislation, there are countless court cases which provide guidance.
There are a variety of factors that the Family Court may consider when determining an application for relocation. Below is a list of potential considerations:
- Reasons or interests of the parent proposing the relocation
- The reality of the parents’ circumstances such as the availability of affordable and appropriate housing, employment and family support
- The impact of the proposed orders on the mental health and wellbeing of each parent
- The effect the relocation would have on the non-relocating parent’s ability to see their child
- The nature of the relationship between the child and each parent, as well as any other significant people in the child’s life such as grandparents and extended family
- The impact the proposed relocation would have on the child’s relationships with their parents and significant people in their life
- Travel costs of the non-relocating parent to see and spend time with their child
- Proposals for how the non-relocating parent will be able to spend time with and communicate with their child
The outcome of each case is unique and based on its facts. Therefore, it is difficult to predict the outcome of cases without consulting a legal professional for advice.
Seek Legal Advice
If you have any questions or concerns regarding relocation, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on (02) 9963 9800 or via our contact form.
An injunction is a court order that requires a party to do something or refrain from doing something. Failing to comply with an injunction can result in criminal or civil penalties, and may even lead to serving an imprisonment sentence.
A parent is entitled to seek an injunction from the Family Court to prevent their child from being taken interstate or overseas by the other parent. It is often the case that evidence will need to be presented to prove to the court that the parent who is taking the child has no plans of returning.
Indicators that a parent is planning to relocate their child
The following could be used as evidence to demonstrate that a parent is planning to permanently take a child interstate or overseas:
- If one-way tickets have been purchased;
- If one parent is planning a holiday and travel arrangement details are being withheld from the other parent;
- If one parent has indicated that they have no plans of returning through their actions, such as selling their house, moving belongings into storage or giving up a lease;
- If one parent has friends and family at the destination or has previously inquired about jobs; or
- If one parent is travelling to a country that is not a signatory to the Hague Convention on the Abduction of Children so you will not be able to get them back from that country with the help of the Australian Government.
Requirements for taking a child overseas
In order to be able to take children overseas parents must obtain a valid passport for the children. If the child doesn’t already have a passport, both parents have to agree to obtain a passport for the child. If for whatever reason, either parent is not content for the child to possess a passport, the other parent may apply to the Family Court for an order that a passport be issued despite these wishes.
A solicitor can assist with putting forward your best case to the court if there is a real risk the other parent is taking the child interstate or overseas without plans to return. The court has the power to make orders that may include to:
- Prevent or restrain the parent from taking the child interstate or out of Australia;
- Require the parent to pay an amount of money to the court as security for the return of the child;
- Direct the parent to give contact details including where the child will be staying and so on; or
- Place the child’s name on the airport watch list to prevent the other parent from leaving the country with the child.
For an injunction to take effect, a copy of the order and any other documents you filed at the court must be given to the parent (or persons) involved.
If an injunction is breached by a parent there are a number of things the court can order of the party in breach. These include:
- Paying a fine;
- Paying a bond to the Court;
- They must provide the other parent with make-up time with the child;
- Ordering them to attend a parenting course;
- Changing any existing Court orders;
- or Enforcing a prison sentence.
If you would like more information on how we can advise you on Family Law matter, do not hesitate to contact us on 9963 9800 or via our contact form here.