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Relocation following divorce: Can I move away with my child?

The Family Law Act 1975 requires parents to attempt to reach agreement on all major issues affecting a child including changes to living arrangements such as moving with your child to another city, state or country. If your child primarily lives with you and you wish to relocate you may be able to reach agreement with the other parent to allow you to move with the child and agree on arrangements for the child to spend time with the other parent as a consequence of the move, say for longer periods of time during school holidays. Reaching agreement is always preferable and consideration should be given to documenting an agreement in Consent Orders filed in the Family Court. But if you can’t agree you may need to apply to the Court for Orders to allow you to move. Whether a Court will make the Order allowing you to move will depend upon your specific circumstances, however, in reaching a decision the best interests of the child is the paramount consideration of the Court, not the reason for your move.

In determining the best interests of the child in a relocation case, as with any parenting matter the Court will consider factors including:

  • The benefit to the child of having a meaningful relationship with both parents – this requires consideration as to the child’s relationship with each of the parents, the parents communication, the current parenting arrangements in place and the impact that the proposed move will have on the relationships including the time that the non-moving parent would be able to spend with the child having regard to the practical difficulty and expense in doing so;
  • The need to protect the child from physical or psychological harm or from being exposed to family violence or neglect;
  • The capacity of each of the parents to provide for the child;
  • The child’s wishes – particularly if the child is older;
  • Each parent’s circumstances including their current situation such as the support provided by the other parent or available to the parent from others, the reason for the proposed move including financial circumstances or re-partnering and how their relationship with the child may be affected should they not be permitted to move.

(A v A: Relocation Approach (2000) FLC 93 and U v U (2002) FLC 93)

In the matter of Wright v Watson [2016] FCCA 127 the Court made Orders in a matter where one of the children had special needs allowing a mother to relocate from North Queensland to Brisbane where family support was available to the Mother. In Quigley v Quigley [2016] FCCA 463 the Court undertook a detailed analysis of the various considerations to determine the child’s best interests and allowed the relocation primarily because it would allow the Mother, who had been the primary carer, to improve her financial circumstances which in turn would benefit the child. In the decision of Morrall & Olmos [2017] FamCAFC 2 the Court considered whether, if the relocation was not permitted, the Mother’s likely decline in mental state would affect the quality of her parenting and therefore undermine the child’s best interest and allowed the proposed move. However, in Alton & Janos [2017] FCCA 3222 the Court noted the parents acrimonious relationship and consequent lack of communication and did not allow the Mother’s proposed relocation primarily because it could not be satisfied that the Mother would facilitate the Father’s time with the child should she be permitted to move.

If you are considering relocation you should obtain legal advice from our experienced team of Family Lawyers before taking any further steps. We can assist you in preparing an Application for Consent Orders if an agreement is able to be reached with the other parent or to prepare an Application to the Court if the other parent does not consent. A well-prepared presentation of the facts of your case can impact upon the outcome.

If you are the parent who is not relocating and you are concerned that the other parent may move with your child without your consent (or if they have already done so) you should obtain legal advice as quickly as possible as it may be necessary to file an urgent Application with the Court.

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