Relocating after divorce – can I take my child with me?

5 January 2021

It’s a common situation after a relationship breaks down where one parent wants to move, whatever the reason for that may be, and wants to take the child with them. But, when the other parent does not want their child to relocate, what happens?

The Family law Act sets out the law relating to children, but there is no specific legislation that deals with relocation matters. The court has to rely on the usual parenting pathways set out in the Family Law Act. As always, the child’s interests are of paramount concern for the court, but not the sole consideration.

Let’s look at the different reasons why parents might like to, or have to, relocate after a relationship breakdown.

  1. Family violence

The existence and severity of family violence can be a very relevant factor in determining whether a parent will be allowed to relocate. In a recent case, the mother’s application to relocate was initially refused, but the court then changed that decision, after a significant event of family violence.

Initially, the parties agreed the children should live in a week-about arrangement with each parent. The father lived with his parents, about three streets away from the mother.

After about a year of this arrangement, the father violently attacked the mother at her home, shortly before the children were due home from school. She was able to escape and raise the alarm with a neighbour.

The judge accepted she feared for her life. A psychologist reported it would be detrimental to the mother’s mental and physical health and her social, emotional and physical wellbeing if she had to remain in the same town. The judge concluded the children were at risk of harm and the mother should be permitted to relocated to the town where her family and partner lived, so she could receive practical and emotional support from them.

  1. Relocating for work

Child relocation cases almost always focus on the applicant parent wanting to move with their child to a specific location. But what happens when that parent is in the Australian Defence Force (ADF) and has to move regularly?

In a recent case, the court made the quite unusual order that a mother could move “wherever her defence force job may send her”.

An ADF representative told the court it was a condition of service that members of the military are available to be posted at any time. If they were not available, they could be dismissed. The father worked full time and the court determined that even with distance, the relationship between the child and father could still be meaningful.

If the mother was forced to leave the ADF, it was likely to have a significant impact on her, as her career with the ADF formed part of her identity and may affect her parenting capacity.

The court found it was not practical, or in the child’s best interest, to continually return to court requesting relocation orders at each posting.

  1. Short-distance relocation

In a recent case, the mother moved one hour’s drive from her current residence, essentially to a new suburb.

However, the move would disrupt the care arrangements for the child and the court was asked to make a decision about which parent the child should primarily live with, and whether or not the child could change schools.

The mother was moving to be with her new partner, with whom she was expecting a baby. The court decided it was not “insurmountable” for the father to visit the child, and they were allowed to move and the child changed schools.

  1. Long distance relocation

Relocation cases are emotional, and in all cases it’s best not to make veiled threats. Comments such as “well, I’m moving anyway, regardless of what’s decided” are not helpful.

In a recent case, a five year old child had spent most of his life with his mother. She married a Canadian citizen and moved to that country, in contradiction of a court order.

Both mother and son were ordered to return to Australia, where the mother told the court she was expecting a baby with her new husband and that she was “relocating to Canada regardless” of whether her older child remained in Australia.

The court ordered the boy remain in Australia with the father, and he was to spend time with the mother during the school holidays and be in regular phone and internet contact with her.

Whatever happens after a relationship breakdown, it’s an emotional time, particularly if one parent wants to or needs to move away with their children.

Before making any decisions about relocating, it’s important to get legal advice. Contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected] to make an appointment with one of our family law specialists.


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