When separation occurs there are so many concerns and considerations a person may have. We are asked to assist our clients in a range of matters including negotiating a fair property settlement, answering Child Support queries, seeking to spend time with children, and everything in between.
A common concern, generally amongst main carers of children, is whether or not relocation with children is possible, either now or into the future. There are often a number of reasons why our clients want to move away with their children; sometimes for a fresh start, sometimes for career or educational opportunities, to escape family violence or other forms of harassment, or simply to be closer to family and other support networks. In these circumstances, the consent of the other parent is required and this is often not provided, resulting in the need to start legal proceedings in the Family Law Courts. These proceedings are sometimes known as ‘relocation proceedings’.
It often seems unfair to the main carer that the secondary carer can “up and move” and still expect to spend time with his/her children to suit their relocation but the main carer has to stay put to enable the time the children have with that parent. The truth of the matter and what the Court will tell you is this; the parent wanting to move has the freedom to do so, what they do not have is the freedom to relocate the children’s residence without the consent of the other parent. The Court does not have the ability to restrict and adult’s freedom of movement however that restriction usually goes hand in hand with the Court’s ability to restrict the movement of the child.
The Family Law Act is silent as to relocation; it neither allows it nor restricts it. If asked to make a determination about relocation, the Court will remain focused on the overall best interests of the child (or children). This approach is no different to any other children’s matter that is before the Court. When determining what is in the child’s best interests, the Court must prioritise a child’s safety followed by the benefit of the child having a meaningful relationship with each parent. There are then a number of additional considerations for the Court including but not limited to the child’s wishes, the nature of the child’s relationship with each parent (and other important persons), each parent’s capacity to provide for the child’s needs (including physical, emotional and intellectual needs), the extent to which a parent has previously participated in the child’s life, and the likely effect of any change on the child.
With relocation cases, the Court must balance the right of the parent to move with the best interests of the child (often these two things will overlap and impact one another). The Court will consider the effect on restraining the parent’s movement and the impact this in turn may have on the child. The distance of the proposed move and the impact on current arrangements will also be relevant. The difficulty in these matters is that there will almost always been a party upset by the Court’s decision.
Often relocation matters are preferably dealt with by the Court on a final, rather than an interim basis, where all of the relevant evidence can be tested. The concern many of our clients have with this is the long waiting period for a final hearing. If you or someone you know is thinking about moving post-separation, one of our family law team members can assist and we encourage you to seek legal assistance as soon as possible to avoid disappointment of long waiting periods and long-drawn-out legal proceedings.