Relocating or moving with children.
The law in this area is quite complex, and courts are constantly asked to determine this questions for parents but it is important to understand that the law applies even when there are no court orders in place. Unfortunately the law is not straight forward and the answer will really depend on your particular circumstances.
In this article we will attempt to break down this complex area of law into a digestible set of questions and principles for you to think about if you or your former partner are thinking about relocating, or have relocated.
Shared Parental Responsibility
If you have shared parental responsibility with the other parent, you will need to talk to each other and try to agree on major long-term decisions that will affect them. What town or city children live in, and what school they go to, are long term decisions, so technically neither parent should make them without reaching agreement with the other parent.
If the parents cannot agree, they should attend Family Dispute Resolution, and if that is unsuccessful in resolving the issue, they may apply to the court to have it decided.
Moving with children
The most significant issue to consider is whether the distance will significantly affect your children’s ability to have a meaningful relationship with the other parent or other people important to their care.
If one parent relocates with children without mutual agreement the other parent can apply to the court to either
prevent them from moving; or
require that they return.
If you want to move with children, you have to first make a genuine effort to reach an agreement with the other parent. If you are not able to agree, you should arrange Family Dispute Resolution or consult with a lawyer.
If you are unable to agree with the other parents either with the assistance of a lawyer, or through FDR you may need to apply to the court for permission to move with the children.
The court will consider whether the move is in the children's best interests balanced against your freedom to move.
If you are considering moving, you need to be aware it can take a court months or years to reach a decision, and there is no guarantee the children will be allowed to move.
Just because there are no parenting orders in place does not mean that you can move. If you move with children without the other parent’s agreement they may apply for a court order that you relocate. Whether the court will make that order, either on an interim basis (shortly after the application is filed) or finally (at the end of a long court process) will depend on a lot of factors including you reason for relocating, the children’s ties to either location, the impact of the relocation on the children’s ability to have a relationship with each parent and other important people like grandparents.
Quite often parents choose to simply relocate without discussing it with the other parent first, and regrettably in come circumstances this is the expedient choice. If you are considering doing so, or you think your former spouse may be at risk of doing so, you should speak to an experienced family lawyer as soon as possible in order to understand what options you have and what steps you should take to minimise your risk and avoid a drawn out court battle, and potentially very painful outcome.
What if children are taken or moved without my permission?
If your children are taken or moved within without your consent you can apply to the court for a recovery order to have them returned. If a recovery order is granted the Australian Federal Police be directed to collect your child if the other parent fails to comply with the order themselves.
In order to avoid lengthy delays it is necessary to file the necessary material so that the court understands the urgency of your matter, and have the best possible chance of having a recovery order made within a couple of weeks. If the court does not decide it is necessary to make a recovery order on an urgent or interim basis, it may be a number of months before the matter is decided, and unfortunately that period of time may itself influence the final outcome, if your children have become settled in a new environment the court may be unwilling to require them to relocate.
What if I don’t know where the children are?
If your children are taken without your agreement you can apply for a location order to find out where they are.
The court will order government agencies such as centrelink to provide information they have about the location of your children or the other parent. An experienced lawyer may also be able to assist by instructing private investigators to make descrete enquiries.
If there are domestic violence orders in place, you should ensure that your lawyer is aware of them to ensure that you do not inadvertently breach them by attempting to locate the other party.
Holiday travel
You should always tell the other parent if you’re taking the child interstate on holiday, to ensure they are able to be contacted in an emergency however there is no legal requirement to do so. If there is no court order in place, there is nothing stopping you from taking a child interstate for a holiday.
If there are parenting orders in place, or an application for a parenting order before a court, it is an offence to move the children out of Australia without the written agreement of both parents. You may go to jail for this offence. This will unfortunately not prevent a party from taking children out of the country, and not all countries have agreements with Australia to return children taken illegally. If you are concerned that the other parent of your children or some other person may attempt to take your children out of the country you should seek urgent legal advice about how to have your children listed with the AFP to prevent them leaving the country.
Moving children because of violence or child abuse
If you or your children are at risk from family or domestic violence or child abuse, you should get urgent legal advice and support.
Magpie Family Law provides free initial consultations to our clients in the Redcliffe peninsula and surrounding areas. Our experienced family lawyerwould be happy to discuss your family law matter with you today.
