Have you separated from your partner and you want to relocate with your children? Maybe you’d like to move closer to your family, or perhaps you’ve been offered a new job in a different city. In family law, this is referred to as relocation. It’s important to understand that you do not have an immediate right to relocate with your children.
This post is intended to give you an understanding of how the law might apply to your decision to move away.
Where there is a Court Order
Often when couples separate, steps are taken to formalise parenting arrangements and a Court Order is made. This Court Order will set out who has parental responsibility for the children and what time the children spend with each parent. Parental responsibility includes all issues surrounding the care, welfare and development of children.
If you have a Court Order providing that you and your former partner have equal shared parental responsibility, then you must make major long-term decisions for your children jointly. A major long-term decision includes any change to your child’s living arrangements that make it significantly difficult for them to spend time with their other parent.
So, what does this mean for you if you want to move? It means that you must get the consent of your former partner before you relocate with the children.
If you move without their consent, you could be in breach of your Court Order and serious consequences could apply (unless there is a valid reason for the breach, such as a risk to your health and safety or that of your child). The Court may order that you return with the children and could even make an order that the children live with the other parent.
What if my ex won’t agree?
If you have spoken with your former partner and he or she doesn’t agree to the move, we recommend participating in family dispute resolution (“FDR”), such as mediation. Attending FDR will give you both a chance to express any concerns you both have. You may be able to reach an agreement about the move which you are both comfortable with. For more information on mediation, please see our post “Mediation – An Alternative To “Going To Court”.
You can also apply to the Court seeking an order that you be allowed to relocate with the children. It’s important to understand that relocation cases are often lengthy, extremely complex and highly emotional. When determining relocation matters, the Court’s paramount consideration is what’s in the best interests of the children.
Where there is no Court Order
If there is no Court Order in place, the law provides that each parent has parental responsibility for their children. When considering moving, you should always speak with your former partner and seek their consent before moving. If your former partner agrees to the move, this agreement should be put in writing.
If you move away without the consent of the other parent, they can apply to the Court seeking parenting orders. This includes an order that you return with the children and possibly an order that the children live with them. Again, when determining such cases, the best interests of the child will always be the Court’s most important consideration.
Relocating without the consent of the other parent, whether or not there is a Court Order in place, can have serious ramifications. We recommend you seek legal advice before making the decision to move.
If you are concerned that your former partner is planning on moving and you don’t have a Court Order in place, or if your former partner has moved without your consent, you should urgently seek professional assistance.
Would you like further information?
By Tegan Martens
Director & Principal Family Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based upon your particular circumstances.