Moving with children
Following separation, one (or perhaps both) parents will need to find somewhere else to live. Sometimes, a separated parent will want to move with the children because of reasons to do with family support, a new relationship, stable accommodation or better work opportunities. This could involve moving to a different suburb, town, state or country.
Changing the place where a child lives is called a relocation decision. Relocation decisions are different to temporary changes in a child's living arrangements, such as taking children away on holidays.
Relocation decisions can have a big impact on the arrangements for children and their current routines. The further away a child is going to move, the harder it can become to encourage or maintain close relationships with the other parent, grandparents and other important relatives.
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This information will help you understand how the family law deals with relocation decisions. Find out:
- how relocation decisions can be made, and
- what the Family Court considers when deciding if children should be allowed to move.
Who gets to decide if I can relocate with my children?
Part of parental responsibility is being able to make decisions about the children's living arrangements. If relocating will make it significantly harder for children to spend time with the other parent (or other important people), you will need to discuss the issue with them and try to reach an agreement.
There is not a set distance that the court applies; it is about the practical impact that relocating will have on the arrangements.
Before you move, you should also think about the flow-on effects that relocating might have on other aspects of the children's lives that involve shared parental responsibility, such as decisions about their education and who they spend time with. For example, even if you were allowed to move the children a short distance away to another suburb without consulting the other parent, you would need their agreement before you could change the children's schools to be closer to your new house.
Participating in family dispute resolution might be useful to help find new arrangements that would allow and encourage the children to maintain close relationships with the other parent, grandparents, and other relatives after they have moved.
If you cannot reach an agreement with the other parent, you can apply to the Family Court for parenting orders to decide where the children should live.
What if I already have parenting orders giving me sole parental responsibility?
This normally means you do not need to consult and agree with the other parent about making changes to the children's living arrangements. However:
- there are restrictions against taking children overseas when parenting orders are in place, and
- you could be in breach of the parenting orders if relocating means that you will be unable to meet your obligations for the children to spend time or communicate with the other parent (or grandparents and other important people included in the orders).
You should get legal advice if the existing parenting orders do not cover the issue of relocating with the children. You might need help with making a parenting plan, consent orders, or applying for new parenting orders to have permission to relocate with the children.
Can I take children overseas?
It is a serious offence to take or send children overseas from Australia if there are parenting orders in place for the children, or if an application or appeal about parenting orders for the children is still going through the court, unless:
- you have a current parenting orders allowing the children to travel overseas, or
- every person who is included in parenting orders, or taking part in the court case, agrees in writing to the overseas travel.
Even if you have parenting orders giving you sole parental responsibility for the children, you cannot take or send them overseas (including just for a holiday) without permission from the court or written agreement of everyone else involved.
What does the Family Court consider when dealing with relocation decisions?
Relocation decisions can be very complex and can have significant consequences on what arrangements the court will include for parental responsibility and spending time with the children. Decisions allowing a parent to relocate with the children are not made in isolation, but are considered as part of working out what arrangements will be in the best interests of the children.
When looking at whether it will be in the children's best interests to relocate with a parent, the court will look at:
- the distance and permanency of the proposed relocation
- the reasons for a parent wanting to move (including employment prospects, costs of living, support of family members, new partner or marriage) and whether those reasons are genuine, optional or essential for the parent proposing to relocate. (They do not need to be compelling reasons.)
- the possible arrangements that would promote the children spending regular time with the other parent, if the children moved further away
- the practical and financial realities involved with the different alternatives
- the impact of relocating on other aspects of the children's environment, such as school, sports and hobbies, friends and extended family, and
- other ways that the children can maintain a relationship with the other parent.
What if I'm worried someone will take the children without permission?
If you think someone will move the children without your agreement or permission in a parenting order, you may be able to apply for an injunction to stop the children moving or for a recovery order to have them brought back home.
