Fiona Hotop is a Senior Associate Lawyer at Cominos Family Lawyers, a Family Law Accredited Specialist, and a member of the Family Law Section of the Law Council of Australia, the Law Society of NSW and the NSW Women Lawyers Association.
Fiona practises exclusively in the area of Family Law and considers it a great privilege to be able to guide her clients through a life-changing and often stressful time, by providing them with clear and practical advice to assist objective and empowering decision-making for their and their family’s future.
Fiona is a mother of 3 teenage children and has first-hand experience of co-parenting following divorce.
If you are co-parenting with a former partner and are contemplating an interstate relocation with children, there are some legal considerations to work through, in addition to the obvious logistical challenges.
Some of the reasons why you may be considering a relocation could be to return closer to the support of extended family members; increased job prospects interstate or a definite job offer; a current partner is being transferred or posted interstate; or a lower cost of living outside a major metropolitan area.
Relocating to another state as a coparent
Obtain Consent to relocate First
Whatever the reason or desire to relocate with children, prior to any relocation you should either obtain the consent of the other parent or seek the permission of the Family Court or Federal Circuit Court of Australia.
As a first step, and even if there are current Parenting Orders in place, if possible you should discuss the idea with your former partner and explore options as to how a relocation might work, and whether they would agree or disagree to the relocation. There is no maximum distance that dictates how far your children are permitted to live from their other parent.
If your ex agrees to the relocation
If your former partner agrees to the children relocating, you can both make an application to the Family Court requesting the Court to make Parenting Orders by consent, which permit the children to relocate and include Orders for time the children will spend with the other parent, for example during the school term, school holidays and significant calendar events. There may be provision for that time to occur in the children’s former city/state of residence and/or the new city/state of residence, as well as regular Skype/FaceTime and telephone communication.
Alternatively, you and your former partner may enter into a Parenting Plan under the Family Law Act reflecting the agreement reached, however unlike Parenting Orders made by the Court, a Parenting Plan is unenforceable.
If your ex does not agree to the relocation
If, in the course of your discussions with your former partner, they do not consent to the children relocating, consider engaging the services of a Family Dispute Resolution (“FDR”) Practitioner who can invite your former partner to attend a mediation in an attempt to reach agreement. If agreement is reached, then it can be implemented by Consent Orders (or Parenting Plan) or, if no agreement is reached, the FDR Practitioner can issue a certificate as required by the Family Law Act to establish that mediation was attempted and was not successful; or that the party refused to attend mediation; or that the matter was otherwise unsuitable for mediation.
Going to Court for your interstate relocation
This certificate is generally required by the Family Court or Federal Circuit Court before you will be permitted to file an application seeking parenting orders, including orders seeking relocation of children.
If proceedings are commenced, it is still possible to resolve the matter by agreement and ask the Court to make Orders by consent.
Whether the Court is ultimately required to make a decision about the children relocating or you and your former partner can reach agreement, the Court must be satisfied that the Parenting Orders are in the children’s best interests, which is the most important or paramount consideration. You are not required to make a compelling case for relocation, but it will be a question of the Court weighing up the competing proposals of you and the other parent, as to what proposal will satisfy the best interests of the children.
A parent might also consider whether it is an option for them to relocate and for the children to remain in the primary care of the other parent. It will be a matter of whether, on balance, this would be in the children’s best interests. Factors to weigh-up may include the ages and wishes of the child/ren, if they are settled in school, have established friendship groups and are otherwise progressing well.
What Happens if a Parent Relocates with Children without the Consent of the Other Parent?
If a parent relocates interstate with children and has not obtained the other parent’s permission or the permission of the Court, that other parent may bring an application in the Family Court or Federal Circuit Court for orders to locate and/or recover the children and return them to their previous place of residence and possibly into the primary care of that other parent.
This could not only be potentially very distressing for the children, but it may also result in the relocating parent being at a disadvantage in these proceedings if the Court forms the view that they had acted in a way which demonstrated a lack of regard for the children’s right to have a meaningful relationship with both of their parents. In other words, their chances of then successfully satisfying the Court that a relocation is in the children’s best interests may be substantially diminished.
Take a Child-Focussed Approach to your interstate move
During the course of any discussions (whether directly with your former partner, through mediation and during the course of Court proceedings if commenced), it is always advisable to maintain a child-focussed attitude and demonstrate a willingness to foster and promote the relationship between the children and the other parent, consistent with the current arrangements.
A child-focussed approach on the part of the relocating parent is even more critical because the children are to be geographically separated from their other parent. The Court will arguably be looking for a clear indication that the relocating parent has the requisite attitude to facilitate and navigate the challenges of a long-distance parent/child relationship.
This article is intended to be a guide only and does not in any way constitute legal advice, which would be dependent upon individual circumstances.