Can I relocate with children during divorce?

Can I relocate with children during divorce?

By cropped Clara Suki

· Read time: 4 minutes

Moving with children while a family law matter is underway can be challenging. While it will differ case to case, it is generally advisable not to move interstate or overseas until there are Orders in place permitting th

Divorce can be an extremely tricky time and you may believe that relocating with children is the best move for you and your family. However, it is important to understand that relocating without the permission of the court may impede your case if family law proceedings are being conducted. Ultimately, it is important to obtain legal advice to understand how to achieve what is best for your kids in the eyes of the law. 

Should I relocate my children straight away? 

Whilst moving interstate may be very tempting, it is generally best to not relocate unless the Court has allowed such travel. Relocating without the Court’s approval may mean that the other parent looks more favourable in the circumstances before the Court. This can then affect any legal proceedings that have commenced. 

Furthermore, the Court places emphasis upon the importance of stability for a child. This means that it is best not to relocate under the Court has offered its final decision. This is so as to avoid having to move back if the Court decides that relocation is not in the child’s best interests.  

How does the Family Court decide relocation cases? 

All decisions that a Family Court may make regarding children require that the Court takes into account the ‘best interests’ of the child. This requirement is enshrined within the Family Law Act 1975. 

This means that where there is a conflict between the interests of the child and parent, the child’s interests remain the paramount consideration. However, this does not mean that the Court disregards what parents desire. It is notable that the best interests of the child can encompass maintaining a good relationship with both parents and ensuring that there is shared parental responsibility. Hence, if the relocation makes it very difficult for your child to maintain a meaningful relationship with their other parent, the Court can take this into account. Any considerations regarding the child’s physical and mental health are also extremely important and will determine the importance of relocation.

The Court will also have regard to other considerations within section 60CC of the Family law Act 1975 when deciding the best interests of the child. Such considerations include: 

  • Whether the child wants to relocate (given that they are old enough to express this opinion)
  • Whether the child has particular reliance or has a closer relationship with either parent
  • How parental responsibilities will be shared if relocation occurs 
  • The location of any other important family members
  • How relocation will affect the capacity for the parent to care for the child
  • Whether there has been any history of family violence 

The emphasis placed on these aspects will depend on the particular circumstances of the case. Courts aim to administer individualised justice and hence this means that what is best for one child may not necessarily be what is best for another. This means that it is important that the Court takes its time in examining each relevant consideration.

Because relocation cases are very complex, the resolution of such a case may take a long time. Generally, there will be compelling reasons for and against relocation as presented by both parents. Court cases are also costly and stressful and hence before commencing legal proceedings, it may be best to seek legal advice. 

It is best if you and your partner are able to agree to relocation plans without a Court. This will not only save time and resources, but will also mean that both parents and child are able to maintain a healthy and unstrained relationship. 

What if relocation is extremely urgent for my child? 

Whilst such cases are generally rare, parents are able to seek to relocate on an interim basis. This means that they are able to relocate before the Court has given its final decision. However, this means that you will have to present strong evidence as to why relocation cannot wait until the final hearing. This also means that you will have to relocate back if the Court decides that relocation is not in your child’s best interests. Obviously this is costly and time-consuming and hence, if relocation is extremely urgent, you should seek legal advice. 

If you need any assistance ending your family court order, or have any questions about relocating with your children during or before a divorce then please feel free to reach us via the contact form.

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