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.
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.