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My ex-partner won’t let me take the kids to live interstate


Relocating children interstate without consent

Scenario

Richard and Bianca separated 12 months ago. They have two children, Lilly aged 12 and Rosie aged 7.  Both Lilly and Rosie have been living with their Mum and spending time with their Dad each alternate weekend.

Bianca wishes to move to Melbourne with Lilly and Rosie. Richard is not happy about this as he will not be able to spend as much time with the children.

Can Bianca move to Melbourne with Lilly and Rosie?

Response

If there are already Court Orders in place that don’t include relocating your children to another State and you move interstate with them, you will be in breach of those orders. There are serious penalties for breaching Court Orders and this can lead to penalties from the court and you will likely be ordered to return with your children.

"There are serious penalties for breaching Court Orders and this can lead to penalties from the court..."

Even if there are no Court Orders in place you still can’t leave with your children without any agreement from your ex- partner. Doing so is what is known as a unilateral relocation and your ex-partner can apply to the court for their return and a court is still likely to order you to return with your children.

It is therefore best practice to reach an agreement with your ex-partner and finalise this agreement by way of Consent Orders with the court. If an agreement cannot be reached between yourself and your ex-partner you may need to apply to the court for orders relating to your relocation with the children.

"...the paramount consideration that the court will take into account when making orders relating to children is what are considered the ‘best interest of the children’."

Under the Family Law Act the paramount consideration that the court will take into account when making orders relating to children is what are considered the ‘best interest of the children’. This means that what is best for the children will come before your wishes or the wishes of the other parent.

In a case similar to the scenario above, the court is likely to consider a number of factors including, but not limited to:

  • The nature of the relationship between the children and Richard and what is necessary for the relationship to be maintained in a meaningful way;
  • Any views expressed by Lilly and Rosie (with weight to be given to such views according to the child’s maturity or level of understanding);
  • The availability of emotional, parenting or financial support from family members or friends in Melbourne as compared to Bianca’s current location;
  • The likely effect of the relocation to Melbourne on Lilly and Rosie’s current circumstances, including the effect that such relocation would have on their relationship with either parent or any other person (including grandparent or relative);
  • The practical difficulty of Lilly and Rosie spending time and communicating with their father and whether that difficulty or expense will affect Lilly and Rosie’s right to maintain a relationship with their father;
  • Any opportunities for Lilly and Rosie in Melbourne as compared to their current location; and
  • Bianca’s financial position, possible job prospects, or educational or training opportunities in Melbourne as compared to her current location.

The Court may find that Bianca has a strong case for relocation if, for example, she was originally from Melbourne and:

  • Bianca had a strong family network in Melbourne with relatives who the children are close to and these relatives would be able to care for the children;
  • Bianca had the opportunity to work in a good job in Melbourne;
  • Her ex-partner would be able to travel to Melbourne to visit Lilly and Rosie or Lilly and Rosie would be able to travel back to Richard’s location to visit their father.

Each case has unique circumstances that will be assessed by the court. It is important to ensure that you seek experienced Family Law advice before you decide to make changes to the living arrangements for your children.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.