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Child Relocation Family Lawyers

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 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, Petrie Family Law expert and Principal Courtney Barton says “I highly doubt there is a single successful relocation case on record where there wasn’t a good reason put forward for the move.”

Courtney says that the common reasons put forward in support of a parent wanting to relocate with the children include:

  1. Financial benefits;
  2. Occupational benefits;
  3. Academic benefits;
  4. Family support;
  5. Spousal employment;
  6. Spousal location;
  7. Homesick (want to return home as unable to settle in new location);
  8. Cultural;
  9. Religious;
  10. 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 lead 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.

According to Petrie family law expert and Principal Courtney Barton “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.”

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.

relocation of children

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Common Questions & Concerns

  • How to spend more time with your children
  • What is substantial and significant time 
  • Parental Alienation in Family Court Disputes – Pt 1
  • Parental Alienation in Family Court Disputes – Pt 2 
  • Top 10 things people do wrong in child custody matters
  • What age can a child decide where they live?
  • Admissibility of recordings in family law cases 
  • Am I a parent?
  • I’m Not a parent. Can I apply for a parenting order? 
  • I want sole custody
  • Can I go to court without doing mediation first?
  • Can parenting orders be changed? 
  • Relocation of Children
  • Interim relocation of children cases
  • Unilateral relocation of children
  • International travel with children after separation
  • My ex is breaching a parenting order. What do I do? 
  • When is supervised time ordered?
  • Is a child’s changed views enough to change a parenting order? 
  • Interim parenting orders – why can’t the judge make the orders I want? 
  • When can you change your child’s surname?
  • What is substantial & significant time?
  • Domestic violence order applications – boosting prospects of success
  • What to do and what not to do when you separate
  • Why you should formalise your property settlement;
  • Is Domestic violence relevant in a property settlement?
  • 6 secrets revealed to protect your assets 
  • 10 tips to protect your assets
  • 6 things you must know before hiring a family lawyer
  • Your Duty of Disclosure 
  • Spousal Maintenance – supporting your ex partner after separation 
  • Initial contribution of assets in a long relationship 
  • What is the just and equitable requirement?
  • Chancellor & Mccoy – no order after 27 yr relationship
  • Am I in a de facto relationship?
  • My ex is selling assets. What can I do?
  • Property acquired after separation – how is it treated? 
  • When are future inheritances they taken into account?
  • Failure to disclose an asset can derail consent orders 
  • Consequences of Defaulting on property orders 
  • Varying property orders 
  • Who stays in the home after separation?
  • Can the court order someone to leave the house – ouster orders 
  • Money lent from parents – gift or loan?
  • The impact of centrelink fraud on a property settlement 
  • CGT rollover relief for transfers of property pursuant to family court orders 
  • Costs orders 
  • Divorce – what you need to know
  • Going back to work after divorce 
  • Step-Parent awarded interim custody over parent 

If you are a law student, graduate or early career lawyer, reach out to Courtney who is also a law Coach. Courtney’s law coaching services are invaluable to young lawyers. Courtney’s one on one law coaching services will help you to achieve massive success in your legal career.  Check out Courtney’s website for the Thriving Young Lawyer to learn more about Courtney’s law coaching services.

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  • Website: Toowong Family Lawyers

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