Packing up and moving is seldom easy. For parents, packing up and moving with the kids following separation or divorce can be especially challenging. One of the most serious considerations is whether you have to get the other parent’s permission to do so. Here’s what you need to know about this important issue.
Reaching consensus on the move
In accordance with Australian law, you must get your former spouse’s (or former partner’s) permission to move with a child you had together. Ideally, the two of you will still be on good terms at this point. If so, you might be able to reach an agreement on your own about your relocation with the kids. Once you’ve done so, you should consider taking appropriate steps to formalise the agreement.
If you can no longer communicate with the other parent effectively by the time you are considering a move, there is always Family Dispute Resolution (FDR). In this forum, a neutral third party facilitates the conversation while allowing each of you to have a say about specific aspects of the agreement.
In a best-case scenario, FDR will work. If it does, you must then decide how to formalise the agreement. This is usually done through either a written parenting plan or a consent order. The key difference is that a parenting plan is not legally binding, but a consent order is. Although you may not think you need a legally binding agreement, it is always best to consult a qualified lawyer before signing any legal document.
When court intervention is warranted
But what if you’re not on good terms with the other parent, you’ve tried FDR and it didn’t work? In this situation, court intervention is warranted, and you must submit an application requesting Relocation Orders. Once you have filed it, the court will determine whether or not you can move with your child.
To reach its decision the court must consider whether relocation with you is in the best interests of your child or children. There is no guarantee that the court will allow it. Specific factors the court will usually take into account include:
- Whether the proposed arrangements would allow your child/children to have or develop a meaningful relationship with both of you (and in particular, the parent who is not relocating).
- The child’s/children’s opinion(s) (if they are capable of expressing them).
- The child’s/children’s bond with each of you (and any other significant people in their lives) and how separation is likely to affect them.
- The logistics (including cost) of the child/children spending time with each of you (again, in particular, spending time with the parent who is not relocating).
- Your ability to communicate and foster a meaningful relationship for the child/children with each parent.
- Any other relevant factors.
You should be prepared to explain the reasons for your relocation (such as a new job, to be closer to family, or the need to escape an abusive relationship). You should be prepared to provide documentation, keeping in mind that the other parent can also seek court intervention to prevent your move.
Relocating to another country
One of the most common concerns parents have about this topic is distance. As it stands, there are no legal restrictions on how far a parent can move with the children following separation or divorce. Theoretically, this means you could move to another country with them. However you could only do so with permission from the other parent or the court.
With that being stated, remember that the court could deny your request. Specifically, it could do so if it determined that the distance would greatly inhibit the other parent’s ability to have a meaningful relationship with the children.
On a similar note, you will also need the other parent’s permission to take your children abroad for even a short holiday. Additionally, both parents must provide written consent for a child to get an Australian passport.
Without written consent, you can still apply for a passport for a child but you must request that special circumstances be considered. Any such application should be made to the Approved Senior Officer of the Department of Foreign Affairs and Trade.
If this application is also denied, you can seek a court order allowing your child to travel internationally. However, absent the other parent’s consent, the court will only issue such an order if it deems that permitting the child to travel is in their best interest.
The consequences of moving without permission
If you and your children move to another part of Australia without a court order or the other parent’s consent, the court will likely intervene. Specifically, it may order that you return to your previous residence until the case is decided. If there is a current court order that you have violated by moving, the other parent can ask the court to have it enforced.
In this context, you should also be aware that if you move overseas without proper authorization, you may be subject to a Hague Convention Application for the return of the children. However, this will only happen if you relocate to a country where the Convention is applicable.
When to seek legal assistance
We recommend seeking competent specialised legal advice about relocation well before you move. This is because it can sometimes take the court months or even years to reach a decision and you need to know the consequences of your actions before you make them.
There are also times when urgent advice is needed. Please contact us immediately if:
- you anticipate that the other parent is considering relocating with your children and wish to prevent the move; or
- the other parent has already relocated without proper authorization or consent.