Expert Advice

Relocation of children following separation

B2B Editor1 May 2015

Do I need permission from the other parent or a Court to move with my children?

Parents need to be aware that if you move within Australia without the other parent’s consent or a court order, the other parent may apply for a recovery order in the family law courts seeking to have the children returned. If a recovery order is made, a Court can also order the AFP to attempt to locate you and to return the children to their primary place of residence. Parents should seek legal advice before moving without the other parent’s consent or a court order.

It is an offence to take children who are the subject of a Parenting Order or proceedings to obtain a Parenting Order out of Australia without the other parent’s consent or a Court order. Even if there are no Orders or court proceedings, the other parent can bring proceedings under the Hague Convention on International Child Abduction which usually results in the children being returned to Australia.

If I am contemplating moving with the children what should I do?

If you are thinking about moving, early planning and timely legal advice is the key. Before talking to the other parent it may be beneficial to first obtain legal advice.

If your legal advice is to obtain the consent of the other parent before moving then you need to give the other parent plenty of notice of your desire to move with the children. If for one reason or another you are unable to or uncomfortable with communicating directly with the other parent, you might consider using a third party, including mediation or solicitor- aided negotiation. In circumstances of domestic violence, mediation may not be appropriate and therefore solicitor-aided negotiation or court intervention may be necessary.

If the other parent agrees to me moving with the children do I need to formalise the arrangement?

If the other parent agrees to you moving with the children then it is important to formalise the agreement in writing, either through a Parenting Plan (which is a signed, written agreement between the parents but not lodged with a Court and therefore are not legally enforceable) or by applying for Consent Orders through the Family Court of Australia (Orders are legally enforceable). The advantage of obtaining Consent Order over a Parenting Plan is to provide greater certainty and enforceability. If an agreement is reached you should consult a lawyer to assist you in drafting the required documents.

What if the other parent doesn’t agree to me taking the children?

If the other parent does not agree to you and the children moving, you can make an Application to the family law courts for court permission to do so. The court will decide whether it is in the best interests of the children to relocate or to stay. There are many factors the Court considers in determining what is in the best interests of the children, and these are outlined in section 60CC of the Family Law Act 1975. A lawyer will be able to give you advice about your prospects of success and assist you to maximise those prospects if you decide to proceed