Relocation of Children (interstate/overseas)

If one party seeks to relocate, they either:

1. Need the consent of the other party; or
2. Need an order of the Court.

If there is no consent to the relocation, an application to the Family Court needs to be made. This can be part of an application that also addresses other issues, or on its own. An application to relocate can be made on an interim basis (so before the matter concludes) or a final basis. An interim relocation may be appropriate where, for instance, the travelling parent is seeking to start a job on a fixed date. However, such a relocation carries a risk of the parent and children being made to return if, at the end of the day, the Court determines that the children should not relocate.

Given the nature of the application, relocation cases are notoriously difficult to resolve as it often hard for parties to find common ground. There is rarely consent from the non-travelling parent and the Court is required to determine the issue.

If the Court is required to make a determination, regard will be had to:

1. First and foremost, the best interests of the children. This is based on a complex list of factors outlined in the legislation in relation to both to how decisions should be made for the children and what time they should be spending with either parent. The best interests of the children are considered the paramount consideration.

The Court may seek third party evidence about this matter. For instance, they may order that a specialist in child development speak to the children to determine not just their wishes (which may not be determinative), but also their state of maturity and what would be best for them.

2. Consideration of the competing proposals for and against the relocation. For instance, what does the relocating parent suggest for the children’s education? Where will they live? How will they participate in their extracurricular activities? Essentially, the parent who has proposed the relocation must give consideration to how the children will live if the Court orders them to move.

3. Balancing the best interests of the children with one parent’s right to relocate. Consideration should, therefore, be given to a scenario in which the parent proposing the relocation goes without the children. The Court does not have the power to stop a parent from moving, only a child. This means that a party is free to go without the children.

The Court will also consider why the parent is seeking to move. For instance, do they need to relocate for their employment or is it just because they want to? Although a parent does not need to have a compelling reason to move, their reason may impact on the consideration the Court has to make under one of the three categories above.

With extensive knowledge and experience in both running and defending relocations, as well as all parenting applications, our specialist team is here to assist. Please contact Carr & Co on 9322 8000 or via email at contactus@carrco.com.au.