The Law and You: Relocating with children after separation | HerCanberra

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The Law and You: Relocating with children after separation


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Going through a divorce is hard on families, especially when one party decides to relocate.

It takes time for new routines to be established and for children and adults to feel comfortable with their different lifestyles, new roles and changed responsibilities.

Relocation cases are often the hardest cases for family courts to decide. Former Family Court Judge Richard Chisholm calls them the ‘San Andreas Fault’ of family law. This is because they can re-open old wounds and add to tensions. Children often suffer the most and get caught in a ‘tug-of-love’. In today’s globalised and digitally connected society, the frequency of such cases is expected to increase, especially when one parent wants to relocate with the children.

This column talks about relocating children after separation. You may need to seek legal advice from a firm specialising in family law on your individual case.

What if I want to relocate with the children?

You may need or want to relocate for many reasons, including for work, promotions or new career opportunities. Sometimes you need to relocate for new family obligations or are simply keen to ‘go back home’ to your support networks.

However, the decision by one parent to relocate likely affects arrangements for children. Legal questions can arise if the relocation limits the contact the other parent has.

The best approach, if possible, is to work out a mutual arrangement involving relocation. This can, for instance, involve agreeing to lengthen visiting schedules around school holidays.

With mutual agreements, family law courts recommend preparing and signing a written agreement that sets out the parenting arrangements. Because the arrangement is jointly agreed, this can be done outside of court. However, you should get legal advice on the best course for your family and to ensure your written agreement is clear and fair.

Is a written agreement legally enforceable?

A written agreement is not legally enforceable, although it does help both parties understand the arrangement agreed on. Meanwhile, if you submit the written agreement to the court to be approved, the court can issue consent orders. These have the same legal force as a court order. Again, you should get legal advice on the best course for your family.

My partner and I can’t agree on relocation arrangements. Can I relocate while we sort things out?

You cannot relocate if there is no agreement between the parents or a court order been put in place by the court. You cannot, in other words, decided to relocate unilaterally.

But I’ve reached a dead end. What do I do?

If you’ve reached a dead end in negotiating with the other parent, you should consult a specialist family law firm, such as Watts McCray, to seek advice as soon as possible.

If parents can’t come to an agreement and the decision by one parent to relocate limits the time children can spend with the other, family courts often need to be involved.

How do family law judges decide relocation cases?

Family law judges decide on these matters case-by-case, with the best interests of children the primary consideration. There are no established statutes for relocation in Australian law.

Depending on the case, the Family Court system may make an order:

  1. Allowing a parent to move: This order would outline the requirements and conditions of the move, such as how children will communicate with the other parent and arrangements for visits and holidays
  1. Preventing a parent from changing a child or children’s residence.

How long will it take for the Family Court to make a decision?

There is no set time limit. Litigation in family courts has significant financial, time and emotional costs. These are extremely delicate and complex cases. This is why it’s important to approach the process carefully and with a great consideration. Watts McCray is well placed to help you along that path.

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Image of ‘the move to a new home‘ via Shutterstock

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