Moving now or moving later?

You’re going through a separation and want to move interstate with your kids. Relocating might sound like the best option but it’s not necessarily, especially if you’ve commenced Court Proceedings to work things out with your ex-husband or wife. If you’re thinking about relocating with children you should obtain specialist legal advice.

This is a cynical and abridged version of how Court proceedings sometimes start:

  1. One parent files an application and a supporting affidavit saying:
    1. All the good things about them as a parent;
    2. All the bad things about the other parent as a parent;
    3. All the reasons the Court should endorse their application.
  2. That paperwork gets served on the other parent;
  3. The other parent files a response and a supporting affidavit saying;
    1. All the good things about them as a parent;
    2. All the bad things about the other parent as a parent;
    3. All the things that are wrong in the first parent’s affidavit; and
    4. All the reasons the Court should endorse their application;
  4. The matter is listed before a Judge for an interim hearing.

In due course, there will be a Family Report and independent evidence available but at this stage, it’s so hard for the Court to identify the ‘real story’ as distinct from the ‘he said she said’.  Many judicial offers have lamented the lack of objective or even agreed evidence available at that stage in the proceedings.  The Court is not able to make findings of contested fact at this stage and must make a determination based on what reliable evidence is available; sometimes very little.  In cases involving serious issues this makes the task extraordinarily difficult.

One complex type of case is a relocation case, where one parent wants to move with the child or children away from their current place of residence to a place far enough away that the current care arrangement would be impractical.

In those cases, the Court takes a pretty cautious and conservative approach.  Two helpful cases in support of that are:

  • Morgan & Miles, where Justice Boland said,

    It appears to me that the very difficult issues in cases involving a relocation…make it highly desirable that except in cases of emergency the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.

  • C & S, where Justice Warnick said,

    In my view it is clear that the interests of any child or children… are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation or recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand… I believe the standard to be applied on an interim decision is even more stringent than on a final basis.

So what does this mean?  Sometimes the Court cannot facilitate a final hearing for 12 months after the proceedings commence.  Do you need to wait until the final hearing?  Here are three tips:

  1. Don’t relocate without permission. This rarely helps. Certainly, don’t relocate without getting legal advice first;
  2. If you are seeking to move on an interim basis your evidence needs to justify why you have to move now and can’t wait for the full forensic enquiry of a final hearing;
  3. Make sure you have explored every alternative to your interim application including seeking expedition of your final hearing, and speak to your lawyer about alternatives.

If you need advice about relocation or you think your current lawyer hasn’t considered everything they should have, call us and we will help you formulate the best plan for your circumstances.

Adam Bak

Adam Bak is a Director in our Canberra office.