So what happens when one parents wants to move interstate with their children – what does the Family Law Act say?
Often clients of mine are fearful of the other parent taking off interstate with their child and permanently relocating with them. And rightfully so, I completely understand their anxiety and empathise with the feeling of powerlessness which comes from one parent attempting to make a unilateral decision like that.
So can they just leave like that? And what can legally be done about it? Well the answer, like a lot of things, is “it depends”. But there are some general points which a lot of people are not necessarily aware of, which can provide some initial comfort.
Under the Family Law Act parents are presumed to have “equal shared parental responsibility” for a child.
When making a parenting order, the Federal Circuit Court or Family Court applies the presumption of “equal shared parental responsibility” to a parenting order unless there is a reason the presumption should not apply.
The reason when the presumption would not apply are where there are issues of one parent committing domestic violence or abuse against the child or another child in the family.
When parents have equal shared parental responsibility for a child, it means they must consult each other and make a genuine attempt to reach an agreement on “major long term issues” about a child.
Major long term issues include where the child lives, where the child goes to school, the child’s religion, and health issues.
So at first instance, a parent seeking to relocate is under an obligation to consult the other parent about relocating. This could occur by mediation. But what happens if the parents consult each other and can’t reach an agreement?
The Court is obliged by the Family Law Act to decide parenting cases by making an assessment of what is in the best interests of the child.
One of the primary considerations the Court must take into account is the benefit of the child having a meaningful relationship with both parents. In a lot of cases, one parent relocating interstate will significantly affect the child’s ability to maintain a meaningful relationship with the parent who has been left behind.
Whether or not a child’s relationship with their parent will be significantly affected by the relocation depends on the circumstances of each case, including things like:
This is by no means an exhaustive list, and there are many other factors a Court can take into account.
There are also other, perfectly natural reasons why a parent may want to move such as being closer to family support, to secure more beneficial job opportunities, to be close to a new partner, or to alleviate severe mental health issues.
What about the “worst case” scenario? My ex has run off with the children interstate without my knowledge or consent!
In this case it is critical to see a lawyer immediately. A lawyer can assist you in making an urgent application to the Federal Circuit Court seeking a Court Order making your ex return with the child. There can be an Order preventing your ex from relocating within a certain distance from your house until the Court decides the case. Failure to take swift action to return a child once a parent has relocated can be interpreted in a negative light by the Court.
It is also important to seek legal advice in circumstances where for example your ex wants to take your child on a holiday interstate but you have suspicion this is a ruse and in actual fact they intend on staying interstate with the child.
What should you do if your ex wants to move or relocate with the child/children interstate? Most importantly, do not agree to the relocation or an interstate holiday if you have reason to believe your ex will keep the child/children interstate.
So what will the Court decide regarding relocation? Well it depends on the circumstances of your particular case, and what the Court considers are in the child’s interests. There are a lot of competing issues which need to be carefully assessed and balanced with this type of matter. Ultimately if parties are unable to agree then the Court needs to make the final decision. It’s important that your case is properly presented so the Judge has all the relevant information before making his/her decision.
This is a difficult area of family law, and one where it’s important to get proper advice from a lawyer even at an early stage. Contact us at Northside Lawyers if you have any concerns about your children being relocated interstate.
CAUTION: This article contains general information of public interest only and is not intended to be, nor should be relied upon as, legal advice specific to the reader’s personal circumstances. Should you have a legal matter, please seek professional advice before acting or relying on this content.