Moving signifies a fresh start for a lot of people. While it is within your constitutional right as an Australian citizen to travel free and unencumbered, it is not as straightforward if you want to take your children with you. As outlined in our previous article, the law requires that the best interests of the children are to be at the forefront of any decision making. Relocating with your children is achievable however the courts can be quite strict in its interpretation of this area of family law, therefore it is advisable that you seek sound legal advice on how best to proceed.
Moving children away from their current community or location is known as relocation. The relocation may be to another town, another state, or another country.
Reasons why a parent might want (or need) to relocate:
- They have found work elsewhere.
- They have a new partner and would like to move to be with them.
- The other parent is not involved in child rearing and the new partner may be more supportive emotionally and/or financially as step parents.
- They would like to be closer to other family or friends that may provide a safe and healthy support network.
- They would like to be closer to better facilities, infrastructure, or schools for the children.
The easiest way to agree on relocation arrangements is to have an open and honest discussion with the other parent. If an agreement is reached, you should include the new living arrangements in your parenting plan or parenting order. However if both parents do not consent or cannot agree on the relocation, you can seek assistance through Family Dispute Resolution. In the event an agreement cannot be reached amicably, an application can be made to the court for determination. Contact us for help on how best to prepare for these proceedings..
It is important to once again keep in mind that when it comes to children and the law, courts will make its decision based on section 60CA of the Family Law Act 1975 – what is in the best interest of the child.
You will recall in our article on Child Custody in Australia, unless established by a parenting order or parenting agreement, it is assumed that both parents will have shared parental responsibility.
Parenting orders are a set of orders made by a court about parenting arrangements for a child if parents cannot come to an agreement amicably and require intervention of the court. Orders can be made by consent and not necessarily restricted to when parties can’t reach an agreement.
A parenting order may deal with one or more of the following:
- whom the child/children will live with;
- how much time the child/children will spend with each parent and with other people (such as grandparents);
- the allocation of parental responsibility;
- how the child/children will communicate with a parent they do not live with, or other people, and;
- any aspect of the care, welfare, or development of the child/children including;
- Whether the relocation of children is granted.
When Will the Court Grant Permission?
Consent of both parents is the most desirable approach as it does not expose the children and the parties to adversarial legal proceedings which can be emotionally stressful and financially taxing. The court is interested in parental cooperation and whether the relocation will impact the ability of the children to sustain a meaningful relationship with both parents.
Some factors that the courts will consider include:
- Where the new location is.
- How will the new location affect current parenting orders?
- Whether the children are interested in having meaningful relationships with both parents.
- What kind of relationship the children have with each parent.
- The children’s views generally on where they might want to live.
- If there is any risk of the children experiencing any physical or psychological harm.
- How the changes might affect the children’s life and day to day living.
- Lifestyle factors of both parents and children.
- How far away the children will be from the other parent.
- Whether there is a history of family violence or abuse.
- Whether the children have other meaningful relationships with other family members (such as grandparents).
What may also be relevant is:
- Whether there is a family network in the new location and whether there is an existing network in the original location.
- How long the parents and the children have been living in the current arrangement.
- Whether there are job prospects in the new location.
- Financial considerations.
- What the children’s wishes are.
- Whether the relocation is for nefarious reasons, intended to cause difficulty for the other parent on purpose.
These are only guiding considerations taken by the court however it is interesting to note that most of these points relate to the wants and needs of the children and not the parents. In the case of U v U (2002) 211 CLR 238 the courts maintained that while freedom of movement is a constitutional right for adults in Australia, this right does not surpass that of the children (in other words, the right of the child is not subordinate to the right to freedom of movement for the adult).
As mentioned in our previous articles, the principle of the best interest of the child covers many facets of a child’s life. It makes a firm assertion that it is integral for children to have a meaningful relationship with both parents. This idea is applied in the case of MMR v GR (2010) 240 CLR 461 and has been cited by other cases frequently. According to this case, the Family Law Act 1975:
“obliges the court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and the question of whether it is reasonably practicable that the child spend equal time with each of them”.
Case Study: Cahan & Kafka  FCCA 2421
This case involved a mother wanting to relocate herself and her child from Melbourne to Sydney following the breakdown of her marriage. Both parents and the child were living in Melbourne at the time of the application.
The mother submitted that the move was driven by a lucrative job offer that would provide a substantial financial benefit for herself and her child. She further submitted that it would be unsustainable for her to fly back and forth from Melbourne to Sydney for the new job and in addition to this, had also started a new relationship with someone in Sydney.
The father, on the other hand, submitted that the travel would also be unsustainable for him as the cost of the flights and accommodation would be great. He further submitted that due to his age, and the fact that he had no friends or family in Sydney, relocation meant that he would have to start his life all over again.
Having weighed all the available evidence before it, the court ultimately decided that it was unfair to expect the father to relocate. It found that the operation of the parenting arrangement would result in the child losing the ability to have a meaningful relationship with her father, and so denied the relocation order.
For the full decision click here.
Holidays and Overseas Travel
You do not need express permission or a new court order if you wish to travel domestically with your child within Australia (so long as it occurs during agreed care time).
However, to travel overseas with your child you will need either:
- the written consent of the other parent who is a party to the shared parenting order; or
- a court order specifying the children can leave.
The application to travel internationally should be made through the Federal Circuit Court or in the Family Court if you have existing parenting orders.
It is considered a criminal offence if parents fail to comply with the above requirements. Under section 65Y of the Family Law Act 1975, offenders can face penalties of up to three years in jail.
What Happens if the Other Parent Relocates Without My Permission?
If one parent does not return the child as per the parenting orders and has not sought prior permission, the other parent can apply to the court for a recovery order. This type of order utilises the assistance of federal and state police officers for safe return of the children and is actioned in accordance with section 67Q of the Family Law Act 1975. A recovery order may authorise the arrest of an offending parent and affect their future parental rights.
International abduction and the Hague Convention
Australia is a party to the Hague Child Abduction Convention. This gives Australians a process of recovery from another country that is also party to this Convention. Article 1 states that the objects of the Convention are:
- to secure the prompt return of children wrongfully removed to or retained in any Contracting State: and
- To ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other contracting States.
In these scenarios, parents should contact the Commonwealth Attorney-General’s Department for assistance.
In situations where the child has not yet left the country, parents can apply to either the Federal Circuit Court or the Family Court to block the initial departure. An application for an Airport Watchlist Order should be made. If this order is granted, airport staff will prevent children from being able to board the place and will alert the authorities of the attempt.
Though the above scenarios are truly unthinkable, unfortunately, they are common occurrences in this particular area of family law. Being a parent is one of the most difficult jobs in the world, having to share that responsibility following separation or divorce can be complicated. If you are reading this and have any concerns about your situation, please reach out to us, and our family law experts can help.