If you’re considering moving with your children following a divorce or separation, you need to be aware of how family law treats relocation. Our team of family lawyers in Perth have put together this post to help you understand everything you need to know about relocation and family law before you make a decision to move with your children.
Relocation and Family Law – What You Need To Know
What Is A Relocation Decision?
After a separation, one or both parents may need to relocate for various reasons. When the parent who has primary care of the children relocates to another address with the child or children, it is regarded as a “relocation decision”.
When the move is to another suburb, it may not be problematic, but when it is to another town, state, or even to another country, it will most certainly affect the children’s lives and current parental arrangements, limiting the time the children spend with the other parent. Such a move can create serious emotional and financial implications for the whole family.
Before any move can proceed, the parent will need to obtain the consent from the other parent. If this point is not covered in a current Parental Order, the other parent has the right to refuse permission for the children to relocate.
As this is usually a highly sensitive and complex matter, getting family law advice is strongly recommended for both parents.
Temporary vs Permanent Changes To Living Arrangements
Temporary changes to a child’s living arrangements, such as taking them away on holiday, are treated differently to making permanent changes to a child’s living arrangements. Nevertheless, written permission still needs to be obtained from the other parent, if you’re planning to take the child on holiday interstate or overseas.
If you intend on making permanent changes to a child’s living arrangements, which will significantly affect the child’s relationship and routine with the other parent, you would first need to discuss it with them and try to reach an amicable agreement that is in the best interest of the child.
Who Decides Whether Children Can Relocate?
If you cannot reach agreement and there is no stipulation on the Parental Order, you could first try Family Dispute Resolution to come to a new arrangement.
If that fails too, you would have to approach the Family Court, which will have the final say as to where the child or children may live.
What Happens If I Have A Parenting Order?
Usually if you have a Parenting Order in place, you may not need the other parent’s consent to relocate if the relocation will not substantially affect the other parent’s time with the children.
However, if your relocation significantly affects the rights of the child to communicate or spend time with the other parent, grandparents or other important people, you may be in breach of your Parenting Order. Expert legal advice is therefore strongly recommended for both parents.
There are other factors to consider that might also result in you breaching the Parenting Order, such as when there is an application or an appeal pending on the Parenting Order.
What Factors Do Family Court Consider When It Comes To Relocation Decisions?
There are no hard and fast rules, and each case is dealt on its own merits. The Family Court will mostly consider the practical implications for the child, some of which will include the following:
- The reasons for the relocation (financial, employment, new partner, better support, etc)
- The distance and the expected length of the relocation
- Impact on the children and other parent (emotional and financial)
- Impact on the child’s schooling, sports, hobbies, friends or extended family support
It is important to remember that the Court’s decision will always depend on what is in the best interests of the children – not the parents.
How Can I Prevent My Children From Being Relocated Without My Consent?
If you think there’s a risk that your children will be relocated without your consent, you can apply for an injunction from the Family Court.
Grandparents and other relatives important to the children may also apply. You would need to provide evidence that it is not just for a holiday but for a permanent relocation. Such evidence may include:
- Travel arrangements were not discussed with you
- You have been told it’s for a holiday but no details have been provided
- One way tickets have been purchased
- House or household goods are being sold
- Children have been told they will changing schools
- You have knowledge that bank accounts or other regular payments have been closed/stopped
The Court may issue various Orders relevant to your case. Urgent legal advice is strongly recommended in these cases.
Can I Prevent My Ex From Applying For A Passport For Our Children?
You certainly can. Australian Law makes it compulsory for both parents to sign Passport Application papers. Even if the children already hold passports, they cannot be taken out of the country without written consent from both parents or legal guardians. Consent for a passport does not automatically mean consent for overseas travel.
If you suspect your children may be taken out of the country without your consent, you can apply to prevent the passport from being issued, or for the passport to be delivered to the Court. If you think that a fraudulent application for a passport has been made, you can submit a Child Alert Form to the Passport Office to place the children’s names on the Airport Watch List, preventing them from leaving the country.
What Do I Do If My Child Has Been Taken Overseas Without My Consent?
Fortunately, Australia is a signatory to the Hague Convention, which deals with international parental abduction matters. You will however need to contact the Commonwealth Attorney-General’s Department as soon as possible, to see if the country your children have been taken to is also a signatory to the Hague Convention. You may also obtain more information and assistance from the Department of Foreign Affairs and Trade.
Needless to say, this can be an extremely complicated process, requiring urgent professional family law advice.
If you’d like to consult with us about relocating your children following separation, get in touch with our family lawyers in Perth today.
We’re experienced in matters of relocation and family law and can help you work out whether it’s possible to relocate and how best to deal with the process legally.