It is natural to want to start a fresh new life after divorce; whether it means buying that fancy sports car you have always wanted, or moving to a new postcode. Inevitably, at least one party must move out of the family home, and generally when children are involved, the parents will remain in close proximity of each other to minimise disruption in the children’s life.
However, what happens when the primary caregiver parent decides to move away from the painful memories that they have chosen to leave behind? What happens to the children? Who do they stay with? What school do they go to? Do I need permission from the other parent? These are all questions that need to be considered before relocating with your children.
Relocation is one of the most difficult issues that can occur after separation. It occurs when one parent wants to move either interstate, overseas, or even to a different town within the State or Territory which is not in the same area as the other. Basically, relocation becomes an issue when the new proposed residence is so far away that it interferes with, or affects, the time that the non-primary parent spends with the children.
Prior to making a decision to relocate, it is ideal to try and reach an amicable agreement with the other parent. This agreement should work for both parents, as well as be in the best interests of the children. Such an agreement can include the non-primary parent spending a longer period of time with children at times such as school holidays. If it is found that an agreement can be reached, such an agreement can be made legally binding by filing an Application for Consent Orders with the Family Court of Australia in circumstances where no pre-existing orders are in place.
If an agreement cannot be reached between both parents, the relocating parent is able to apply for a Court Order allowing them to relocate with the children. This is important as if a parent relocates without an amicable agreement, or Court Order, the other parent can apply to Court requesting that an order be made for the primary parent and children be returned until the matter has been considered before the Court.
When applying for a relocation Court Order, the relocating parent must demonstrate why they want, or need, to relocate to their chosen destination, and how this move will be in the best interests of the children. In effect, the other parent will also be given the opportunity to respond to the Court as to why the relocation should not occur.
However, applying to the Court for a relocation Court Order does not necessarily mean it will be granted. The relocating parent must be aware that the Court has the power to prevent them from relocating, and a Court Order can be made requiring the parent to remain in their current location. This is based predominantly upon what the best interests of the children are in that particular circumstance.
Although relocating with your children after separation may seem like an easy decision, it is necessary to recognise a balance of the best interests of your children and the interests of the non-primary parent’s right to spend time with the children. If you are having difficulty in negotiating relocation with your ex-partner or require any further information regarding relocation orders, contact our family law team on (08) 8210 5400.