Moving away with children after separation – what to consider first

Separation can trigger financial pressure for both parties to a relationship, and with the increasing costs of living a common question for separating parents is “Can I relocate with the children?”

There may be numerous reasons why it is convenient for one parent, usually the primary carer of the children, to move away from the other parent with the children.  Often these reasons will include one or more of the following factors:

• A lower cost of living or housing;
• More employment prospects, or more appealing employment prospects; and
• A stronger support network of family and/or friends.

There is no simple answer to whether a parent can relocate with children, and if the Court decides that there are no reasonable grounds for the relocation, an Order can be made compelling the parent who moved away to return with the children.

Before deciding to relocate, considerable thought should be given to the following factors:

1.  The best interests of the children?

The Court’s primary concern in any parenting case is what is in the children’s best interests.  Often this will be a difficult and controversial question, as it is common for either or both parents to unintentionally mask their own wants and desires as the best interests for the children.

One way for a Court to determine what is in the children’s best interests is to have a Family Report prepared by an expert.  The Family Report will consider both parents views, and those of the children, and make recommendations on what parenting arrangements would look like in the best interests of the children.

While a Family Report can be persuasive, the final decision will fall to the Court if the parties are unable to agree.

2. Are there genuine grounds to relocate?

Generally speaking, relocation will often be more acceptable in families with younger children, particularly if the primary carer has limited ability to earn income and the other parent is not contributing significantly to the costs of living.

A common example for relocation is more affordable housing, and the Court will ultimately weigh up any additional travel between residences against the primary carer’s ability to find suitable accommodation in a closer proximity.   This is more prevalent when children are younger, as often the primary carer can only work part-time, if at all.

Another example of when relocation might be appropriate is in circumstances where a child has particular or special needs which render the primary carer in need of a greater support network.  For instance, a young child with feeding, developmental or behavioural issues may require much more one-on-one parenting time, as well time spent at various medical appointments. In those circumstances the Court will likely consider the primary carer’s application to relocate with the children.

3. Will the relocation significantly reduce the other parent’s ability to spend time with the children?

Where one parent’s relocation will render the other parent unable to spend significant and substantial time with the children, it is unlikely that relocation will be deemed appropriate.  The Family Law Act 1975 (Cth) clearly establishes that children should have meaningful relationships with both parents, and any change in circumstance which may undermine that principal will be scrutinised.

4. Is the travel between residences too much for the children?

Lengthy travel can be particularly troublesome for young school-aged children.  For instance, spending over an hour in a car after a long day at school can take a considerable toll on young children.  As the children get older, that travel time can be spent completing homework or having meaningful discussions with the other parent, and becomes less of an issue as the children grow old enough not to need constant stimulation.

5. Is the relocation interstate or international?

Relocation overseas or interstate will only be considered appropriate in limited circumstances, as it generally impacts one parent’s ability to spend time with the children on a regular basis.  Put simply, it is impractical for children to travel internationally each week or fortnight. In the limited circumstances where those living arrangements are deemed appropriate, often the non-primary carer will have more substantial “block” time with children over school holiday periods.

Before relocating it is important to discuss your plans with the other parent, provided it is safe and sensible to do so.  If the other parent consents to the relocation and arrangements can be made for the children, it will be a far less stressful situation.  The risk in relocating without the other parent’s consent or permission of the Court, is that the other parent (and the Court) will react negatively to the decision and call the relocating parent back to the former residence, or that area.

If you would like more information on relocating with children and how to best handle parenting arrangements after separation or during court proceedings, please contact Kydon Segal Lawyers