Blackman Legal

I want to move interstate with my kids now that my divorce is complete. Why can't I?

One of the most contentious issues in family law occurs when the divorce and parenting arrangements have been completed, and one parent wants to move away, taking the children of the relationship with them. Issues arise when the other parent opposes the move by the children, fearful that they will no longer be able to see them.
Often, the conflict ends up in the court, where the decision about whether one parent can relocate with the children will be made.

What does the law say?

If you move locally, and the move does not interfere with the other parent spending time and communicating with their children, you do not need permission from the other parent to do so.
However, if you are planning to move a long distance away from the other parent, interstate or overseas, you will need the other parent’s written permission to do so. If you can’t get that permission, you will need Court Orders allowing you to relocate the children. This is particularly relevant where there are already Court Orders in place regarding the time the other parent spends with the children. You cannot simply move the children without written permission of the other party.
If you fail to obtain the other parent’s permission or a Court Order, the other parent may file legal proceedings against you to recover the children. There is also a risk that the living arrangements could be changed by the Court. You could find you become the contact parent spending time with the children and the other parent who did not move could become the parent the children live with.

How does the law make its decision?

The court looks at a number of factors when considering whether a parent may relocate with the children:

  • How the parent not wanting to move will be able to visit and spend time with the children
  • The existing relationship between the parents and children
  • Whether there has been one parent who is the primary carer
  • How much time the children currently spend with the parent they do not live with (if applicable) and how this would be affected by a move
  • The distance and permanent nature of the move
  • What impact the move will have on the children’s schooling, friendships, and relationships with extended family members
  • The age and maturity of the children
  • The wishes of the children
  • The reasons for moving (such as financial or personal)

Case Study
Mabry & Neilson [2013] FCCA 478 (28 June 2013) Maguire, J

The relationship started online early in 2011 while the husband lived in Australia and the wife lived in Japan. The husband travelled to Japan two months later and the couple got engaged. The husband returned to Australia and in November, travelled back to Japan for two weeks.
The wife fell pregnant during this time. In early 2012, the wife arrived in Australia and they were married.
Shortly after the baby’s birth, the couple separated. There were allegations from both sides of physical, emotional and financial abuse. At the time of the court hearing in May 2013, the baby was 10 months old and the relationship had broken down irretrievably.
The mother was living in regional Victoria on a spouse visa, unemployed, with limited English skills, isolated with no family support as the sole primary caregiver to the baby. The father had limited visitation with the baby but had offered no explanation for failing to attend scheduled visitations.
The wife applied to the court for sole custody and permission to relocate with the baby to Japan.

The husband sought shared care of baby and opposed the wife’s relocation to Japan on the basis that the she would not assist or encourage a relationship between the child and the father. Further, the child’s extended family in Australia would be denied contact with the child and it was unlikely that he would be able to enforce any Australian orders in his favour or to achieve any reasonable time and relationship with the child.

The court held that the mother had capably cared for the child and that she was the primary attachment figure. Crucial factors determining the child’s best interests were the child’s young age, the mother’s isolation and lack of support in Australia, there being no established relationship between the child and his father, the uncooperative and non-communicative relationship between the parents and the cultural and language differences.

Justice Maguire noted that “there is no determination that I can make which would not be without potential detriment to this child.”
On the one hand it was a relocation where there was no established relationship with the father and there were huge difficulties in both establishing and maintaining a relationship given the distance and limited funds. On the other hand, the effects on the child of forcing the Mother to remain in regional Australia in circumstances where she was extremely socially isolated, exhausted her financial reserves, no realistic expectation of or ability to work in the short term, and where there was no supportive relationship between the child’s parents and indeed further violence between them a distinct possibility.

The Court ordered the Mother have sole parental responsibility and residence of child and she was permitted to her to relocate with child after 31 January 2014.

It is important that any parent who wishes to move away seek legal advice.