Phillips Family Law Director Tony Phillips, Accredited Family Law Specialist, discusses what parents should consider when relocating children after separation. Case law and the Family Law Act 1975 provide that the relocation of children is fundamentally about the rights of the children involved, he writes.
Regardless of whether it’s you that is looking to relocate with your children or your former partner, you need to be aware of some important considerations.
In my experience, the issue of relocating with children typically arises when someone needs to relocate to receive family support, is unable to find employment in their area or when they have re-partnered. Any relocation is a decision that both parents, who share parental responsibility, should consult each other about.
The case law and the Family Law Act 1975 provides that the relocation of children is fundamentally about the rights of the children involved. It is not about parental rights as so many people hope or assume. More on this later.
Depending on how far along you are in your separation journey, you may already have a parenting arrangement in place. There are typically three categories of parenting arrangements:
1. ‘The Sensible Handshake’ where both parties agree to parenting arrangements and there is no formal documentation;
2. A Parenting Plan – a document that that often comes out of counselling or therapy. It is a document that is evidence of what the parents agreed, but is non-enforceable.
3. Court Orders – consent orders or orders that a Court imposes on the parties. This is for those who are unable to reach agreement and require the enforce-ability of Court ordered arrangements.
A court will look at the relocation of children from the perspective of ‘how does this relocation impact the rights of the child or children, to have a meaningful relationship with both parents?’
The younger the children are, the less likely permission to relocate is will be given, unless there is a major disqualifying factor about why one parent shouldn’t spend time with the children. What is key is the ability for parent-child bonding to occur and for the child to have frequent, regular time with both parents. When a child is older, there is a better prospect of relocation being granted because they have already bonded with both parents and have an established relationship.
Can Children Be Relocated, Even If I Don’t Consent?
If relocation is being disputed between parents, the Court’s role is to weigh up the potential negative impact on the relationship for the child. If, for example, there are two parents who are separated and the father is a hands-on parent who say takes the children to sport two afternoons a week and has them four nights a fortnight; relocation of the children would mean a significant change and loss of the relationship as it currently exists. The Court will also consider the impact of the move is the child’s social network- their peer relationships and family support.
Because the Court assesses the impact on relationship for the child, the relocation doesn’t need to be an interstate or international relocation. A relocation as short-ranged as from Brisbane to the Gold Coast (an hour’s travel) could be enough to alter the current routine and relationship and be deemed as impacting negatively on the relationship for the child by the Courts.
Planning To Relocate
If you are considering relocating with your children, usually your lawyer will contact the other party (or their lawyer), and notify them of your intentions. You are not seeking their permission but you are making them aware and discussions can commence. If the other party objects, you may have to file an Application to Relocate to the Court.
Other Parent Intending to Relocate
If instead, you are in receipt of the notification to relocate (or feel that a relocation is on the cards) and do not agree it, you need to have a letter to the other parent that states that you do not consent to the relocation. In the instance where a former partner has already relocated with the child, despite clear evidence of opposition to the relocation, the Court may then order the return of the child.
Before You Act
The contemplation of relocating children can be a highly emotional time. What is key is behaving in a way that means that if you are required to go to Court at any point, the Court cannot be critical of you – that you have a track record that indicates to the Court that you have consulted with the other parent.
If you are considering separation and relocation is already on the agenda, it is essential to seek good professional advice and work out a strategy. Likewise, if you have concerns that your former partner is planning to relocate with the children then you need professional advice to formulate a strategy as soon as possible. If you do not agree to the relocation, you will want to be on the front foot in making this clear.
If you or someone you know is experiencing issues or has concerns relating to their children’s parenting arrangements, share this article with them so they can be aware of these considerations.
Please contact the author if you have any queries about this article.
With over 35 years’ experience, Managing Director Tony Phillips is recognised as a pre-eminent family lawyer in Queensland and as a Leading Family Lawyer in Australia by his peers for consecutive years since 2012 in the Doyle’s Guide to the Australian Legal Profession. Tony assists people experiencing relationship breakdown or those seeking advice prior to or during a relationship to achieve commercially focused, “big picture”, and effective solutions, which meet their individual objectives. With specialist experience in property / asset division, particularly in intricate trust and corporate structuring, large rural properties, farming ventures and businesses and acting for third parties, Tony’s niche is advising in complex and net high worth property divisions.
Known for adopting a commercial, pragmatic approach, Tony and his team collaborate with estate planning lawyers and financial planners to ensure optimal asset protection strategies are put in place for the people he considers himself fortunate to assist. Tony’s approach and enthusiasm for family law work is captured by the stream of referrals from satisfied clients and fellow lawyers, confident to place the requirements of family and friends in times of need in the hands of such a trusted and dedicated advisor. Tony’s clients often comment on his measured, level headed and calm approach and his ability to empathise and grasp the sensitivities, whilst managing the legal complexities of their cases with skill and precision. Highly regarded by peers as a thought leader in family law, until August 2017 Tony sat on the Family Law Committee of the Queensland Law Society (QLS), which represents its members practising in family law and provides commentary and input on policy in relation to family law issues. Connect with Tony via Linkedin