Relocating Locally

6 July 2010

When separation occurs, it is quite common that one of the spouses may wish to move away. Often the desire to relocate can come about as a result of new employment opportunities, a new relationship, to be closer to family and friends or simply a change of lifestyle and a fresh start. This becomes far more complicated when there are children involved and the parent with primary care wants to move away.

When agreement can’t be reached, the common question is “How far is too far?”
Whether the Court will allow the relocation or not will be determined on the facts of each individual situation. There is no straight-forward answer or formula that the Court applies. The Court will consider the proposals of both parents and will then determine what will be in the ‘best interests’ of the children. When the Court considers the ‘best interests’ it will look at whether a ‘meaningful relationship’ can be maintained between each parent and the child.
The Court recently considered (2) cases on an urgent Interim Hearing basis. In both instances, the Mother had relocated against the Father’s wishes. One case involved a short distance move and both cases involved a dispute over the children’s place of schooling.

Case 1:

  • The Father and Mother were together for 10 years and had 2 children aged 9 and 15. The children lived with the Mother and spent time with the Father.
  • The Mother wanted the children to relocate with her from New South Wales to Brisbane. She proposed the Father spend time with the children during part of the school holidays.
  • The Father did not agree with the Mother’s proposed arrangements and wanted the children to live with him, if the Mother proceeded to relocate. If she did not relocate, he proposed that the children live with him from Friday until Tuesday each week.
  • With a Final Hearing date allocated for the end of 2010, the Mother, without consent from the Father, relocated 64km away from where she and the children had been living and enrolled the children in new schools.
  • The Father made an urgent Interim Application opposing the Mother’s move and the change of school.
  • The eldest child continued to work at her part-time job and the 9 year old child wanted to play rugby league in the team his Father coached in the former town.
Court found:
  • It would be in the ‘best interests’ of the 15 year old child to return to her previous school.
  • Equal time would not be in the best interests of the children, as the 9 year old child had never experienced equal time with both parents and by allowing the 15 year old child to have equal time, this would separate the siblings.
Court Order:
  • Both children live with the Mother, while both parents have equal shared parental responsibility for the children.
  • The children be re-enrolled at their previous school, however the Mother and children can continue to reside at their new residence. The parents should also register the 9 year old child in rugby league and ensure he attends matches.

Case 2:

  • The Mother and Father were together for 6 years and had children aged 7 and 3 at the time of the Interim Hearing.
  • 8 months after the parents separated, the Mother moved with the children 16km away and enrolled the children in a new school.
  • The Father had filed an Interim Application restraining the Mother from moving the children out of their existing school.
  • The Father said that he saw the children nearly everyday, collected them from and taking them to school. He also said that he and the Mother both agreed the children’s school would not be changed until the end of that year, so they could both maintain a settled routine.
  • The Father did not agree with the children being relocated and proposed a shared care arrangement.
Court Found:
  • On an urgent Interim basis, the Court could not determine what the best parenting arrangement for the children was, as there was no independent expert evidence in regards to what was in the ‘best interests’ of the children.
  • The Court found that the Mother’s relocation against the Father’s will reflected poorly on her attitude towards her parenting responsibilities. The Court was not satisfied that the relocation provided the children with the same involvement that the Father had previously had with them.
Court Order:
  • The children be re-enrolled at the previous school and day care centre and the Mother be restrained from removing them from these schools.
  • The children live with the Father each alternate week and at all other times live with the Mother.
In a separation where children are involved, it is important that before parents make any sudden decisions about moving away, that they obtain Family Law advice.
Relocating Locally

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