Do I have a right to relocate?
When a parent moves their child/children to another town, state or country, this is known as relocation of children. If following separation, you are considering relocating with your child/children you should first speak to the other parent and obtain their consent to the relocation occurring. If you and your former partner are unable to reach an agreement through mediation, you will be required to file an application to the court, to seek consent to be able to relocate.
If the move is going to significantly limit the time the child/children spend with the other parent, depending on the circumstances of the case, the court may not give permission for you to move with the children.
If you move without the consent of the other parent, the court may require you to return with the children until the case has been finally determined by a court at a Hearing.
For more information on interim relocation cases, where a parent has unilaterally relocated without consent, see our blog entitled Prevention is better than Cure – Interim Relocation Cases.
When it comes to relocating yourself, your freedom of movement entitles you to pack up and go wherever you please.
However, there is no automatic right for you to be able to relocate with your children, if doing so is likely to impact on the time the other parent spends with the children.
How does a court determine a relocation of children case?
A relocation of children case is just like any other parenting case, in that the court considers what is in the best interests of the children, having regard to the facts of each case and the relevant factors under section 60CC of the Family Law Act.
The best interests of the children is the paramount consideration of the court when determining what orders it is to make. In determining what is in the children’s best interests the court is required to consider the benefit of the child having a meaningful relationship with each of the child’s parents, the child’s right to be protected from harm, neglect and family violence, the capacity of the parents to meet the needs of the children, the relationship of the child with each of the parents, and a variety of other factors. Reasonable practicability of the orders i.e. whether they can physically be carried out and complied with by the parties, is also a relevant consideration.
If a court makes a parenting order which provides for the parties to have equal shared parental responsibility in relation to long term decisions affecting the children, the court must also then consider whether it is in the children’s best interests to spend equal time with each of the parents AND whether equal time is reasonably practicable. If it is not, the court must consider whether the children spending substantial and significant time with the non-primary caregiver is in the children’s best interests and whether substantial and significant time is reasonably practical.
What is the criteria for a successful relocation of children case?
There is no specific formula or set of circumstances that must exist for a relocation of children case to be successful.
In the leading case of Morgan v Miles, the Full Court of the Family Court stated the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement.
The court reminds us on a regular basis that a parent who wishes to move, does not need to provide a compelling reason to be able to do so.
Having said that, there is not a single relocation case on record where there wasn’t a good reason put forward for the move.
The common reasons put forward in support of a parent wanting to relocate with the children include:
- Financial benefits;
- Occupational benefits;
- Academic benefits;
- Family support;
- Spousal employment;
- Spousal location;
- Homesick (want to return home as unable to settle in new location);
- Mental health.
The court will consider these types of ‘legitimate interests and desires’ of the parties in conjunction with the factors relevant to what is in the best interests of the children, when determining a relocation of children case.
There has been a trend in recent years in the family law sphere, whereby applicants were led to believe that in order to guarantee the success of an application to relocate they must show that there has been/will be a severe impact on the primary carer’s mental health.
This is a myth.
Although mental health difficulties impacting on the primary carer are a highly relevant consideration of the court, it is certainly not a requirement for a successful relocation case nor is it a guideline.
The legitimate interests and desires of the parties which may result in a successful application for relocation are much more relaxed.
The ‘happiness of the primary carer’ appears to be the most commonly successful storyline provided the relocation proposal is not contrary to the best interests of the children.
Are you seeking to relocate with the children?
If you are seeking to relocate to another town, state or country with your child/children, or if your ex partner is trying to do so, it is important that you seek legal advice as early as possible. In relocation of children cases, it is particularly important that your lawyer is able to take a step back in the preparation process early on and plan a strategy and method of telling your story to the court, to maximise the prospects of success of your application whether that be to relocate with the children, or restrain the other party from doing so.
Contact us now for advice and a plan to enable you to achieve the outcome you desire.