Rules for Child Relocation

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It’s not uncommon for one parent to think about moving after a separation. It could be to another suburb, interstate, or even overseas. If you find yourself in this situation and are the primary caregiver of any children, you can apply to the Federal Circuit Court and Family Court for relocation orders if you are unable to reach an amicable arrangement with your ex-partner.

Relocating with children can have an enormous impact on their current routine and their relationships with other parents and family members. As Perth divorce lawyers, we have come up with some points summarising what you need to know regarding child relocation and the law in Australia.


Consent to Relocate


The Family Law Act requires that the parent relocating must speak with the other parent and get their permission to relocate. It is best to arrange when the child will be able to see the parent who has relocated. The agreement could allow the child to spend school holidays together with the other parent.

If the parent refuses to agree to relocate the child, the court must issue a court order to permit the move. The court can order the parent to come back with the child if the move is made without consent from the other parent.

If the parents are unable to agree, the parent who is moving can request a court order with a provision allowing the child’s relocation. An order can be requested by the other parent to stop the relocation. The Perth family court mediation process might deny the request, particularly if the relocation is not in the best interest of the child.


The Courts Considerations for Relocation


Relocation of children cases are just like other parenting cases in that the court looks at what is best for the child, considering the facts and relevant factors under section 60CC of the Family Law Act.

When determining what order is best for children’s interests, the court must also consider the child’s rights to a healthy relationship with both of their parents, to protect them from harm, neglect, or family violence, the parent’s ability to provide for their children’s needs, and the relationship between the child and each parent. Reasonable practicability of orders, i.e. Also, it is important to determine if the orders can physically be performed and complied with.

A court may make a parenting order that allows the parties to share equal parental responsibility for long-term decisions affecting children. The court must then decide if it is in the best interests of the children to spend equal time with their parents and if equal time is feasible. If the order is not made, the court will need to consider whether children spend substantial and substantial time with their non-primary caregiver and whether this is reasonable.


Relocating Without Consent


The Family Law Act 1995 stipulates that when a couple divorces, they will automatically share parental responsibilities. This responsibility includes the ability and power to make decisions concerning the child’s long-term welfare, including their living arrangements.

The other parent can request a recovery or consent order from a parent who decides to move in with their child. During family court mediation in Perth, a recovery order can be made under Section 67Q. It requires the child to be returned either to the parent of the child or to the person who has parenting rights. This person is usually the parent who has parental responsibility for the child. A court will grant a request for a collection order. This order authorises or directs another person to search for, recover, or deliver a child. In most cases, this will be the Australian Federal Police.

If a parent decides to move their child to another country, it may be considered child abduction and the Hague Convention could apply. The Hague Convention is a treaty that many countries, including Australia, have signed. Although the Hague Convention’s purpose is to quickly return a child to his or her country of origin if they have been moved without permission, the process is not simple in every country. If child relocation takes place outside of Australia and is to another country that is a party to the Hague Convention, the parent can apply to have access to their child.


What Criteria are Necessary for a Successful Relocation Case Involving Children?


A successful relocation of children does not require a particular set of circumstances.

In the leading case of Morgan and Miles, the Full Court of the Family Court ruled that the child’s best interests should be balanced with the relocating parent’s right to freedom of movement.

During the Perth family court mediation process, the court reminds us regularly that parents who want to move do not need to present a compelling reason.

However, we don’t believe there has ever been a successful case of relocation where there wasn’t a compelling reason to move.

There are several reasons a parent might want to move with their children:

  • Financial benefits
  • Benefits for employees
  • Academic benefits
  • Support for the family
  • Spousal employment
  • Spousal location
  • Homesickness (the need to return home because they are unable to settle in a new place)
  • Cultural
  • Religious
  • Mental health

These types of “legitimate interests and desires” will be considered by the court when deciding a case for the relocation of children.

In recent years, there has been a tendency in family law in Perth that applicants believed that to ensure the success of a relocation application, they had to show that the primary caregiver’s mental health had suffered.

This is a myth.

While mental health problems affecting the primary carer are an important consideration for the court, they are not a requirement for successful relocation cases nor a guideline.

The legitimate desires and interests that may lead to a successful relocation application are much more relaxed.

“The happiness of the primary caregiver” seems to be the most successful storyline.


How Can We Assist?


As with any major decision that must be made by separated parents, it is important to consider whether Perth family law dispute resolution might be appropriate. With the assistance of an independent, trained professional, this is a way to resolve parenting issues without resorting to litigation.

Burra-Robinson Family Lawyers in Perth can advise you on the best way to proceed when it comes to:

  • Requesting consent to relocate your children
  • Prevent your ex-partner or your children from being granted a child relocation order.

At Perth divorce lawyers, Burra-Robinson Family Lawyers, our approach is to seek a mutual solution whenever possible. We will only resort to court proceedings if necessary to ensure the child’s safety. If you are looking for a Perth family lawyer, we can help you. Talk to us today.