Relocation with children and family law

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Potential issues

We live in a world where people are more mobile than ever. It’s not just Australians that love to travel and work overseas, people from all around the world flock to Australia to pursue work and personal opportunities. I met my Malaysian-born wife at university. Fellow Bloom lawyer, Jane, met her husband when travelling in London, and they have subsequently lived in New Zealand, Australia and Singapore. Many readers or their partners have connections with other locations. 

When a couple with children separate, there may be a desire to move to another location. Such a move may significantly affect parenting arrangements, creating potential problems for the remaining parent, e.g.:

  • reduced opportunities to spend time with a child

  • difficulty maintaining substantial relationships with a child

  • reduced well-being of a child/parent

  • unaffordability or impracticality of travel or other arrangements.

It’s not just parents that are affected - the views of grandparents, adult siblings, and other persons concerned with the care, welfare, or development of a child may need to be considered.

Usual legal principles apply

What might a court do? Usual Family Law Act 1975 principles and considerations apply, including:

The best interests of the child are paramount

The court must especially consider the benefit of the child having a meaningful relationship with both parents, and the need to protect the child from harm, abuse, neglect or family violence

The court will also consider:

  • any views expressed by the child

  • the likely effect of any changes in the child’s circumstances

  • the practical difficulty and expense of a child spending time with and communicating with a parent. 

Interim orders
A court may temporarily make orders that prevent a move or require the return of a child, pending further investigation. 

Consider alternative forms of access

In a recent case, the Family Court of Australia held that an order restraining relocation should rarely be given. With ever expanding opportunities for travel and communications, we should consider any alternate forms of access to a child.

Pros and cons

Family law courts do not require a “compelling reason” for a move but if there is such a reason then it surely can’t hurt! 

Your position regarding a proposed move is more likely to be persuasive if it is evidence-based and addresses any important factors, including:

  • family support

  • spouse location

  • personal and/or spouse employment

  • professional or academic advantage

  • financial advantage

  • religious support needs

  • mental health needs

  • a need to return “home” for wellbeing.

Are there any significant connections between the child and the competing locations?

What is the nature and extent of any disruption that is likely to affect the child?

What are the wishes of the child? 

What travel, communication, or other arrangements are reasonably open? 

What arrangements are in the best interests of the child?

Developing your case

  1. Collate all relevant information.

  2. Address the fundamentals (and other relevant factors)

  3. Consider the point of view of the other party.

  4. Consider whether there is independent support for or against the move, such as a report from a school welfare officer, psychologist, or family consultant. 

  5. Obtain legal advice and aim to communicate a reasonable position clearly and effectively.