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Can you relocate while pregnant?

2 December 2019

Following the breakdown of a relationship, one party may want to make a “fresh start” and relocate from the town or region where they lived with their spouse during the relationship.

If there are no children of the relationship, that party can relocate wherever they want. If there are children of the relationship, both parties usually need to agree on whether the children should relocate from the town or region which has been their home. The court recently considered a case where one party had relocated whilst pregnant and the other party was opposed to it. What happens in that situation?

The Facts

  1. The mother and father (of the unborn child) began a relationship in May 2017 and separated in September 2017.
  2. During the relationship, the parties lived in the Northern Territory.
  3. At the time of separation, the mother (to-be) immediately went to live with her family in New South Wales – before relocating to Queensland. At the time the mother relocated to Queensland, she remained pregnant and had not given birth.
  4. The baby was born in Queensland.

The Decision

The father opposed the mother’s relocation and sought her return. The first Judge made an Order that the mother return with the child to New South Wales. The mother appealed. The Appeal Court found that the primary judge had incorrectly regarded the case as a “relocation case” and had therefore, been led into error. The mother’s appeal was successful on the basis that the primary judge had made errors of law and the orders made by the primary judge were set aside.

The Lesson

The Appeal Court noted that the child had never been a resident of New South Wales. The Appeal Court said that, properly considered, the father’s application was for the child to be brought to New South Wales, so that the father and child could have a relationship. The Court found that the primary Judge had not considered the ability of the father to have a relationship with the child in Queensland, had not properly considered the mother’s evidence, and also made orders that were not supported by the evidence.

The case demonstrates the necessity of having evidence before the court about the child’s place of residence and properly formulating orders that are supported by the evidence.

This case confirms the court’s long held view that where a person is pregnant, that individual’s right to liberty is paramount to the rights of an unborn child.

Need advice?

If you believe you have a similar situation and would like Family Law advice, please contact Michael Lynch Family Lawyers on (07) 3221 4300 and we will be able to assist you.

2019-11-27T15:47:27+10:00

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