This week I put the question out there to my family and friends – what family law topic do people want to hear about? I had some interesting replies, but one of the serious ones was whether a parent can move towns or states with their children if they have separated.
And just to infuriate you all the answer is…it depends.
First things first, if you decide to separate from your husband/wife/partner and the two of you have kids together, do not simply move towns without discussing it with your ex. If you do, you might face having a Court Order requiring you to move back. This can be expensive, disruptive and very stressful.
Does this mean you can’t move? No, it just means you need to take considered steps before doing so, including getting legal advice. If you want to move, you need to start taking these steps early on (i.e. before signing a lease, buying a home, etc). For example, if you are thinking you might want to move in about 1 years time, don’t wait until a month before you want to move, start getting advice now, so that there is enough time to explore all of your options if you ex does not agree.
The most straightforward way for you to move successfully is for your ex to agree to you moving with the children AND for this agreement to be recorded. If you don’t have a record of the agreement, again, in the future you could face having a Court Order requiring you to move back. So if you do agree, at the very least get this agreement in writing. Even better is to record it in a parenting plan. Even better is to get Consent Orders.
But what if you can’t talk to your ex about it? If you don’t have a confirmed agreement to move, and you don’t feel comfortable talking to your ex about it directly, another option is to attend mediation. Places such as Relationships Australia and the Family Relationships Centers offer separated parents options to try and resolve their disagreements via mediation. They can also offer what is know as “shuttle” mediation, where you don’t have to be in the same room as your ex. Some mediation centers also allow for lawyer assisted mediation.
If you prefer to have a lawyer advocating for you, another option is for your lawyer to try and negotiate an agreement with your ex (or with his/her lawyer if they have one). If you are not in contact with your ex, then your lawyer can give you advice about steps to take before relocating.
Another option is Collaborative Law. It involves each parent having a lawyer, and then both parents and their lawyers meeting in 4 way round-table sessions to reach an agreement that everyone can live with. The essential ingredient of Collaborative Law is that everyone (including the lawyers) agrees not to go to Court.
Once you have reached agreement, the best protection for you is to have Consent Orders drafted by your lawyer, signed by each of you and filed at Court.
What if you’ve tried everything and you still can’t agree? Then you do have the option of going to Court to seek permission to move. This is usually in the form of an Initiating Application to the Court seeking Orders allowing you to relocate, and setting out the Orders you propose be made to allow the children to spend time and communicate with the other parent once the relocation occurs. The Court will then receive evidence from both parents and experts so it can make a determination about what is in the children’s best interests. Usually this will involve everyone meeting with a Court expert (known as a Family Consultant) so they can interview everyone regarding their wishes as well as provide a recommendation to the Court about what the expert believes will be in the children’s best interests.
The Court will consider a number of factors such as: what each of the parents are proposing in terms of the children spending time with the other parent, the children’s wishes (depending on their age), the relationship between the parents and the children, whether the relationships can be maintained if the children move away from one parent, the practical difficulties (if any) caused by such a move, the benefits of the proposed move, the considerations under the Family Law Act and any other relevant matter.
- Do not move without agreement, Court Order or legal advice;
- If you want to move, get advice from a family lawyer as early as possible;
- Before going to Court, try to reach agreement with your ex;
- Ensure you are facilitating a good relationship between the children and your ex so that you can demonstrate to the Court that the relationship would be maintained if you move;
- Come up with a proposal for how your children can continue to have a relationship with your ex (including spending time with them and communicating with them via phone/skype etc)
- Do not lie to your ex and/or the Court (the case referred to in this earlier blog post about relocation has just been confirmed by the Full Court in the case reported as Nada & Nettle. The parent was not permitted to move).
This is general information only. Every case is different and the Court will make a decision based on the individual circumstances of your family, with the paramount consideration being the best interests of the children.
If in doubt, seek advice from a professional!
By Kasey Fox, Farrar Gesini Dunn Lawyer.