Divorce and separation is difficult in any case, but when a child is involved it often becomes more of a case of protecting the interests of your children as opposed to yourself.
Emotions run high during the breakdown of a relationship, and getting through the simplest day-to-day chores such as shopping and cooking, can sometimes seem impossible. Accordingly, and in many cases parents gravitate towards attaining family support to ensure that they maintain a stable, predictable and safe environment for their children, and this can sometimes require a relocation to interstate or overseas.
Can relocation be done without the consent of the non-relocating parent?
If you are proposing to relocate with your child, and the relocation will impact on the child’s ability to spend time with the non-relocating parent, then you may need to seek permission from the other parent. If, after genuine effort to try to reach an agreement, the other parent still rejects the move, then you can apply to the Family Court for an Order authorising the relocation.
What factors does the Court consider when deciding if a Child can move?
When deciding whether you can move with your child, the Family Court consider what is in the best interests of the child as the most important (but not the only) consideration.
In determining what is in the best interests of the Child, the Court will consider the following factors:
- The proposal for the other parent to spend time with the child to continue and maintain a relationship with the non-relocating parent (for example, longer visits during holidays, video calls, more regular telephone contact etc);
- The existing relationship between the child and each parent;
- Whether the parent that the child lives with has been the primary carer for some time and is the preferred parent for the child to live with;
- How much time the child currently spends with the parent they do not live with, and whether the relationship will continue or be maintained if the move is allowed;
- The distance and permanent nature of the move;
- The wishes and the age/maturity of the child to make decisions; and
- The cost and practicality of the other parent spending time with the child.
In addition to the above factors, the Court may also consider:
- The reasons for moving, such as financial or economic reasons (i.e. a new job) or personal reasons (i.e. moving closer to family), and whether these reasons are genuine, optional or essential for the parent wishing to move and for the child;
- The rights of the parents to move on with their lives;
- The rights of the parents to form new relationships;
- The rights of the parents to freedom of movement; and
- Travel costs.
Whilst the Family Court has no authority to stop adults from moving, it does acknowledge that preventing a child from relocating may impede on a person’s freedom of movement.
Accordingly, the Courts will consider the proposals of each parent, in conjunction with the abovementioned factors when determining whether or not the move is in the best interests of the child, and thus allowed.
What happens if I don’t get permission or a Court Order?
If there are existing parenting orders in place providing shared parental responsibility of major issues concerning the child, such as where the child lives, then there may be serious consequences for the breach of a Court Order.
If the move impacts on the ability of the other parent to freely spend time the child, and you did not seek consent from the other parent, or ask the Family Court for an order allowing the move, then the other parent may apply to the Court for a Recovery Order to return the child to the place where they normally lived prior to the move.
Should you have any queries or concerns in relation to your rights to relocate with your child, or preventing your former spouse from relocating with your child, please contact our experienced Gold Coast Family lawyers on 07 5563 8970 to discuss your individual queries.