As Australia becomes a more mobile society there are more incidents of one of the parents of the children wishing to relocate, either within Australia or to a foreign country. A Court cannot prevent a parent from relocating. However, it can prevent the parent who has the care of the children from taking the children with them.

Unless there are exceptional circumstances the parent who intends to relocate with the children should notify the other parent prior to doing so. If the other parent consents to the relocation, arrangements for contact with the children will need to be negotiated or determined by the Court. If negotiations are successful then it is preferable any agreement be properly documented.

If the other parent does not agree then it may be necessary for the parent wishing to relocate to make an Application to Court. The Court will then make a decision based upon the welfare or best interests of the children.

If there is a Court Order relating to parenting issues including who the child lives with and the time a child spends with other people, it is likely that the parent who the child lives with would not be permitted to relocate without the consent of the other parent, otherwise they may be in breach of the Order. The parent who the child lives with would need to make an Application to the Court to seek to vary the Order to allow them to relocate.

Even if there is no Court Order it would be prudent for the parent wishing to relocate with the children to seek the consent of the other parent before doing so and, if that parent does not give their consent, make an Application to the Court for an Order which would allow them to do so.

In determining relocation cases the Court has applied the following principles:

• The welfare or best interests of the children is the paramount but not sole consideration;
• A person wishing to relocate with the children is not required to demonstrate compelling reasons for the relocation;
• The Court must evaluate each of the proposals advanced by the parties;
• The evaluation of the intending proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the children's best interests;
• A Court cannot determine the issues in a way which separates the issue of relocation from that of who the child will live with and the best interests of the children.

When considering the best interests of the children the Court will take into account such things as the right of the parent who the child lives with to move on with their life, form new relationships and have freedom of movement and the need to ensure the continuation of the relationship with the parent that the child spends time with and travel costs involved should the parent who the child lives with be permitted to relocate with the children.

The distance of the proposed relocation is a significant factor. The Court is very unlikely to restrain a parent who wishes to move from Brisbane to the Gold Coast. However, a parent who wishes to relocate the children to another country would have much more difficulty persuading the Court it is in the children's best interests to do so, given the likely result is that the other parent would have much less frequent contact with the children. In cases such as these, the parent wishing to relocate would need to put forward good reasons to the Court why it would be in the children's best interests to leave Australia to reside overseas and what arrangements they propose to be put in place to ensure the other parent has regular and meaningful contact with the children.

The law in this area is constantly changing. A parent who is thinking about relocating with their children or wishes to prevent the other parent from relocating, should seek specialist advice from us about the particular circumstances of their case and the implications of the law and how it applies to their particular circumstances.

Disclaimer
Our website does not give legal advice.
The information on this website, together with the information sheets, is produced by Hartley Healy Lawyers. It provides general information only on relevant topics of interest in relation to Family Law current at the time it is produced. No reliance should be placed on such general information as contained on this site and in the information sheets and legal advice should be sought about the particular circumstances of your particular case.