Relocating With a Child After Divorce: Your Questions Answered

There are several reasons why you may be thinking about relocating, temporarily or permanently. You may wish to move to another town, move interstate or travel to another country.  There is a common law presumption unless a Court makes another order that both parents of a child who is not 18 have parental responsibility for their child, and therefore there are legal implications that must be considered when relocating with a child, whether you are separated or divorced.  

Today’s blog talks through some of the common questions asked when considering relocating with a child within Australia.  The list is not exhaustive by any means, so we encourage you to speak to us to discuss the matter in detail and find out what’s right for your individual circumstances.

 

What is child relocation?

Child relocation can be described as the changing of a child’s living arrangements to another town, city, state or country. If parents have an order for equal shared parental responsibility, and a change to the child’s living arrangements makes it significantly more difficult for the child to spend time with a parent, then the non-relocating parent’s consent to the relocation or court order permitting the move is needed.

The relevant legislation is s65DAA of the Family Law Act, which explains in detail the process that the court must follow when considering if a child should be spending equal or substantial time with each parent.

 

How do I get permission to move?

If there is a need to relocate, first and foremost it is encouraged that you talk to the other parent and try to come to an amicable agreement.  You may be able to compromise on the other parent spending longer periods of time during school holidays or longer visits through the year, or your former partner may agree to move to where you are hoping to relocate to.  

Attending dispute resolution can often help in reaching an agreement about the relocation.  If you are able to resolve the issue, it is often best to enter into a written parenting plan or apply to the Family Court for a consent order to formalise the agreement.

 

How do I make plans for contact between my child and the other parent?

It is important to set out the parameters of contact or “time and communications” with the other parent on the type of contact (for example video calls, telephone calls and physical contact), how frequent communications or visits/time will be, how costs of travel will be split, if and how the child can travel, accompanied or otherwise.  Once you have agreed on the frequency and type of communications, this can be recorded in writing, preferably in the form of a parenting consent order.

 

What if I can’t reach an agreement with the other parent?  

If you have tried and failed to reach an agreement, you must demonstrate that you have attempted family dispute resolution (with the exception of family violence and other limited exceptions) before you can apply to the Federal Circuit Court for an order that permits relocation.

Obtaining a relocation order can be difficult, expensive and three may be delays.  The court will always consider the best interests of the child before any other factors, as this is the paramount consideration for the court.

 

How do I apply to the court for a relocation order?

If you are applying for relocation, you will need to include in your application a demonstration of an attempt at Family Dispute Resolution, as well as detailed information of your plans for relocation.  For example, you may need to include information on;

  • where you are going
  • your reasons for the relocation
  • the housing situation
  • plans for school and before/after school care
  • the support system in the new location
  • history of your relationship with your former partner
  • the relationship between the child and each parent
  • your proposals for the child’s time and communication with each parent after any relocation

 

What if the child is relocated without a court order?

If a parent moves without consent of the other parent or a court order, the other parent may be able to apply to the court for an order that the child or children be returned until an outcome has been determined by the court in certain circumstances.  If a court order is already in place, the other parent may be able to file a contravention application to seek that a party who breaches a court order be punished.

If the other parent takes your child without discussing it with you,  you can apply for a Recovery Order with the court, which enable police officers to take action to find, recover and return a child to you, as well as prohibiting that person from removing or taking possession of the child.

 

Final Thoughts…

As with any major decision to be made as separated parents, consideration should always be given to where family dispute resolution is appropriate.  This is a means to try and resolve parenting issues without litigation if possible, with the help of a trained and independent professional.

Daykin Family Law have extensive experience in mediating outcomes for clients which can avoid the court process and provide you with certainty.  Talk to us today about how we can assist you.

Shannon Daykin is an Accredited Family Law Specialist with extensive experience in helping with family law matters and dispute resolution. If you are struggling to agree on a relocation arrangement, contact Daykin Family Law today to let us devise a clear plan for you.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.

 

Parenting Arrangements during COVID-19

Parenting Arrangements during COVID-19

Navigating government restrictions, school shutdowns, and illness during the coronavirus pandemic

Amidst the many drastic changes COVID-19 is forcing upon our everyday lives, the Family Law Courts have recognised the difficulties some families now face in adhering to their existing parenting arrangements or Orders. This has left many parents unsure of their rights and obligations throughout this pandemic.

As always, the primary concern of parents should be that of a child’s health and wellbeing. We’ve outlined the recommendations made by the Family Court’s Chief Justice and summarised our own guidance in navigating changing family circumstances.

Where restrictions contradict specifications in your parenting arrangement

In some instances, an established agreement or Order of the Court may include obligations on a parent which directly contradict the COVID-19 restrictions set out by the state and federal governments.

An example could include an arrangement in which the drop off/pick up location is specified as the child’s school, many of which are currently closed across the country.

The closure of schools and parents working from home

With many schools and after-hours care centres closed, families are experiencing a drastic change in routine and family dynamic. If one or both parents are able/forced to work from home, we suggest sitting down with both your former partner and your child/ren (separately if needed) in order to create a new family routine which allows for the continuance of both work commitments and schooling commitments, as well as valuable downtime between parent and child/ren.

If one or both parents have been deemed ‘essential workers’ and are required to leave the home for work, alternative arrangements may need to be made, perhaps with the assistance of friends and family.  This is to ensure both you and your former partner are able to fulfil work obligations whilst children are unable to physically attend school.

Independent legal advice should be sought about the best way to record and document any agreement reached to deal with the changes arising from the pandemic relevant to your parenting arrangements.

When a parent falls ill

At some point, members of either household may find themselves having contracted the virus, or fearful of having contracted the virus due to close proximity with someone who has tested positive or recently been overseas.  This will present challenges when children are moving between homes.

Furthermore, a parent may be concerned about their child/ren living within a household in which social distancing and biosafety recommendations are not being adhered to.

If you are concerned about your child’s health or safety, you should consider first raising any concerns you have with the other parent and seek to agree on a resolution that meets the child/ren’s needs and best promotes their wellbeing.  If this is not practical or agreement cannot be reached between the parents, you should consider seeking independent legal advice regarding your specific situation as there are a range of options to assist in resolves issues like this.

Potential solutions

We have some guidance from the Courts, with the Statement from the Honourable Will Alstergren regarding Parenting Orders and COVID-19 released recently.  This provides useful information for families during this difficult period.

If the arrangements you have in place with the other parent are simply unworkable in light of the pandemic then, as a first step, consider reaching an agreement with the other parent to modify any arrangements where necessary. In doing so, it’s important to remember that whilst the specifics of existing arrangements and Orders may not be logistically possible, the purpose and spirit of the order should remain unchanged and the primary priority should always be the health and safety of the child/ren involved.

If you are able to come to a mutually agreed solution, be sure to make the agreement in writing, whether over a formal letter, email or text. With the assistance of a Family Law specialist, any variations to parenting arrangements can be recorded in a way that will least likely cause issues later.  If seeking to vary any orders of the Court, we recommend that you obtain advice about your specific situation.

If you are unable to come to a mutually agreeable solution, or contact with your former partner is not possible, you should consider seeking the assistance of a Family Law specialist or Family Mediation specialist.

Finding a new norm

Amidst the broader changes caused by the pandemic, it can be difficult for many families to maintain routine and normalcy.  This can be particularly difficult for children of separated parents to keep to the routine they had in place with a parent previously when the restrictions make it impossible for them to continue.

The use of video calling and social media, facilitated by a parent as appropriate, are excellent tools for allowing a child to keep in contact with a parent whom they can no longer spend time with in person. Such activities can be built into a larger daily routine or schedule which gives back some of the structure lost without the routine of school and other activities (such as after-school sport).

By using these other methods of communication more frequently, this may assist in ensuring the bond and connection between a child and parent continues during any period where face-to-face contact cannot occur.

Reach out

If you are still unsure about your parental rights and responsibilities, or the effect that COVID-19 may have on your existing parenting arrangement or orders, contact us to discuss your situation and how best to promote your child’s best interests whilst ensuring that you continue to meet your obligations.

 

Shannon Daykin is an Accredited Family Law Specialist and Director of Daykin Family Law, offering telephone and video conferencing consultations throughout the COVID-19 pandemic, and in-person appointments where necessary.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.

Understanding parental responsibility: not just for parents

The phrase ‘equal shared parental responsibility’ is one that can be easily misunderstood to have the same meaning as ‘equal time with the children’. It is not unusual for parents or individuals with children that are subject to parenting matters before the Court to hear this phrase and sometimes be confused. As such, it is important for parties separating, and non-parent applicants before the Court, to understand the meaning of equal shared parental responsibility.

When making a parenting order, the Court applies a rebuttable presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Parental responsibility refers to all duties, powers, responsibilities and authority which parents have in relation to their children. These responsibilities and duties that parents have for their children include long term decisions such as determining the children’s religion and making decisions about the child’s health and education.

This then means, unless the Court orders otherwise, it is presumed every parent has this parental responsibility and, as such, parents that have separated or divorced ought to share major decision-making regarding the children. It should be understood that although parental responsibility places an obligation of responsibility on the parent, it does not confer an automatic and absolute right of a parent towards the child. Under Australian legislation, the best interests of the child are paramount to the Court’s decision-making.  It must be in the child’s best interests for an order to be made that both parents have equal shared parental responsibility.  If such an order is made, the Court must then determine whether an order that the child spend equal time with both parents is in the child’s best interests and should be made.  In a lot of cases, for a lot of reasons, this is not reasonably practicable and other time arrangements must be considered.

Orders for parental responsibility in relation to a child are not just for parents.  Such orders can be made in favour of a child’s grandparent(s) or any other person concerned with the child’s care, welfare and development.

If you have recently separated from your spouse or de facto partner, or have a child in your life whose long term care you are concerned about, contact us today for a reduced fixed fee initial consultation to discuss your options.  We have a great depth of experience in children’s matters, including acting for grandparents and non-parent applicants before the Court, and will provide you with no-nonsense, pragmatic advice.   Visit our website for information on our services and contact details.

First published 11 October 2016