On 4 April 2017, Queensland footballer and Melbourne Storm superstar Cooper Cronk announced that in 2018, he would be relocating from Melbourne to Sydney with his fiancé. With the issue of moving inter-state currently in the media, we wanted to look at relocation in Family Law on our blog this week, and in particular, how it works when parents are separated and one parent wants to move and take the children with them. Read on to find out from our Child Custody Lawyers Brisbane.
Sometimes, a parent may wish to relocate with the children interstate or to a place which is not within easy reach for the other parent to spend time with the children. If this is your situation and you and your former partner cannot reach agreement or resolve matters at a mediation, you will need to file an Application in court.
It is important to remember that as an adult, you have the right to pack up and go wherever and whenever you choose. However, as a parent, your child’s best interests must be considered. It may be that your child’s best interests lie in making the move that you wish to make. However, if the other parent objects, you may find that resolving this issue sees you in Court unless parents can reach agreement.
In most cases, you must attempt a dispute resolution meeting with the other parent before seeking the assistance of the court. However, this may not apply if the other parent has already relocated with the children without your consent. You may then apply to the Court seeking a recovery order and other parenting orders. You may wish first to try to reach agreement with the other parent. You should be mindful though of not leaving it too long to go before the court if agreement cannot be reached. You will want to avoid a situation where your children become established in their new environment, possible involving a new school or kindergarten.
If you are the parent wanting to move, where agreement cannot be reached with the other parent through negotiation or a dispute resolution meeting, you will need to apply to court seeking a parenting order which provides for the children to relocate with you.
Once you get to Court
All parenting cases are determined on the facts of the case. There is no pre-determined outcome for a matter regarding relocation nor a formula that can be applied. The Court will consider all the usual factors that are relevant in a parenting case.
The Court will need to determine whether it is in the best interests of the child to spend equal time with each parent and whether equal time is reasonably practicable. If it is not, the Court must consider whether the child spending substantial and significant time with each of the parents is in the best interests of the child and whether it is reasonably practicable.
The paramount consideration for the Court will always be what is in the best interests of the child. When determining what is in the child’s best interests, the court will consider the benefit of a child having a meaningful relationship with both parents, whether there is any risk of or actual family violence or neglect and numerous other factors.
As the parent wanting to relocate, you do not need to provide a compelling reason to the court for wanting to move. That being said, it can help when attempting to persuade the court that it will be in the child’s best interests to allow the child to relocate to demonstrate your reasons for wanting to relocate. Those reasons may for example effect your capacity to parent and this will be of relevance in determining what is in the best interests of the child.
Sally and Mike have been married for 14 years. They have a 5 year old child, B. The family moves to a rural mining town for Mike’s new job. Sally really struggles with living in a rural town and decides to return to Brisbane with B. Sally and Mike separate shortly after. Mike applies to the court for a recovery order – to have Sally return to the rural town with B. This order was made, and upon returning to the town, Sally could not find a full-time job or a house for her and B to live in.
Upon appealing the recovery order, the court finds that although it was in the best interests of B to be able to spend equal time with both parents, it was not reasonably practicable for that equal time to occur in these circumstances. In circumstances where the relocation meant that Sally was living in a caravan and relying on Centrelink for income, the court ought to have considered alternative orders.
Get in Contact with our Child Custody Lawyers Brisbane
If you or someone you know is going through a similar situation, it’s important to seek legal advice early on. Our Child Custody Lawyers Brisbane, offer professional and experienced advice that can help you and your family to move forward in life. For more information on Child Custody, click here. Or, give our Child Custody Lawyers Brisbane a call today for a free 15 minute consultation.