Separation or divorce should be a liberating feeling and a moment in your life where freedom awaits.
Unfortunately, that is not the reality for many mums after separation, as growing evidence tells us that domestic and family violence and abuse does not always end when a relationship ends. In fact, separation can be one of the most dangerous times for women.
Every human being has the right to freedom of movement and to live where they choose. However, for many parents, this freedom can be in tension with the right of the other parent to have a meaningful relationship with their children.
Many mums have a vision to relocate to a different area to create a better life for their children. However, for some there is an added layer of difficulty, if they have come from a relationship dominated by coercive control, rule setting, and a drive for power imposed by the other parent.
It is possible that your former partner could use your proposal to relocate as a tactical opportunity to control your freedom.
DO I NEED PERMISSION TO RELOCATE?
From a legal perspective, it is impossible to relocate with your children without the other parent’s permission, or a Court Order.
If the other parent does not agree to your plans to relocate, it is not uncommon for many mums to feel constrained and trapped. Or perhaps feel as though they cannot reach their potential, or live in a place where they feel would be best for them and their children.
WHAT HAPPENS IF I RELOCATE WITHOUT PERMISSION?
If you do relocate with the children, without permission, you risk having a Recovery Order made against you.
This would allow the Australian Federal Police to recover and return the children back to the original location.
In the same way, if the other parent relocates with your children without your consent, you are able to bring a Recovery Order to have your children returned.
WHO CAN HELP ME RELOCATE?
The general rule is that a parent should not move with their children without the consent of the other parent, or a Court Order (unless there are safety or danger issues requiring you to flee from an unsafe situation).
Engaging a Family Lawyer is the best way to help you navigate your vision to relocate with your children.
HOW CAN I RELOCATE WITHOUT GOING TO COURT?
If you are wishing to move with the children (and you are not in immediate danger of abuse), the first step should always be to reach an Agreement with the other parent outside of Court.
This could include:
A SIMPLE CHAT
A conversation between you and the other parent
MEDIATION
A mediation (also known as Family Dispute Resolution) – with or without lawyers;
A WRITTEN PROPOSAL
A written proposal from a family lawyer, outlining your proposal to move. In my experience, written proposals should avoid inciting conflict between you and the other parent. After all, you catch more flies with honey
Ask your family lawyer if they have training in mediation, conflict resolution, or collaborative practice. I always try to place myself in the position of the parent who is not relocating to understand the reasons why they may resist a proposal to relocate from my client. I always try to address their concerns, and pre-empt solutions, before they have even had a chance to address their concerns.
In a written proposal, I always address things like:
- How frequently the other parent will spend with the children
- How frequently telephone or video calls may occur
- Payment proposals for flights to visit the other parent (if necessary)
- An acknowledgement of the strengths of the other parent.
I want the other parent to be reassured that relocating is not an attempt to undermine their bond with the children. Sometimes, a “strengths approach” to proposing relocation can also have a positive impact on the relationship between the parents; and
If it is something you are comfortable with, it can also be useful to offer for the other parent to visit the children, if you relocate.
WE HAVE MADE AN AGREEMENT. NOW WHAT?
If you and the other parent can come to an Agreement, it is best to formalise this Agreement so that it is legally enforceable.
This means you are protected from the other parent changing their mind or withdrawing their consent.
Family Lawyers can help you enter your Agreement into a Parenting Plan or Consent Orders. Both of these options provide some level of protection for your legal position, and create certainty for you.
We generally recommend that an Agreement is formalised into Consent Orders, which are sealed by the Court. Usually, these Orders apply until the children reach 18 years of age.
WHAT IF WE ARE UNABLE TO REACH AN AGREEMENT ABOUT RELOCATION?
We always prefer our clients to seek solutions outside of court, as litigation is expensive, emotionally burdensome, and can take time.
However, if an Agreement is not possible, the next step is to initiate court proceedings in the Federal Circuit Court.
In a Relocation Application one of the Court’s paramount considerations is the best interests of the children. We know that the Family Law Act places great weight on the children’s right to have a meaningful relationship with both parents. Therefore, Relocation Applications are complex to run in court. This is always difficult advice to deliver to Mums hoping to relocate.
HOW WILL THE COURT CONSIDER MY RELOCATION APPLICATION?
Other factors that the Court may consider when deciding on a Relocation Application include:
- The age of the children
- The relationship between the children and the non-relocating parent
- How the children and the non-relocating parent would spend time together (quality and quantity)
- The connection to the place of relocation, and evidence of the children’s connection. For example, if you are relocating from Queensland to New South Wales to be closer to family, it helps if you are able to show that you and the children have frequently visited New South Wales on holidays. It helps if you have evidence of trips you have already gone on, so that we can demonstrate a pattern, rather than trips you are “going” to do. In law, our system runs off evidence, and the more you can gather to support a Relocation Application, the better.
HELP! I AM FLEEING DOMESTIC VIOLENCE AND NEED TO RELOCATE
For mums who are fleeing the danger of domestic violence with their children, it is possible to bring urgent Relocation Applications, before the other parent can initiate a Recovery Order.
At every step, we want to avoid the other parent using the legal system to further control and intimidate their former partner.
At CLEON Legal and Mediation Services, I always want my clients to be in the driver’s seat of their matters. I want my clients to feel empowered in bringing an Application, rather than responding to an Application from an abusive former partner.
Some legal terminology used in this article:
Mediation and Family Dispute Resolution
This is not intended to be legal advice (and should not be relied upon as legal advice) but rather general information only, as each individual’s circumstances are different. The role of a lawyer is to apply your individual and specific set of circumstances and your life, your goals, and personal objectives, to the law – this is how legal advice is delivered. Each life is unique, and this means the law applies differently to each person’s life.
