key takeaways
Are you considering relocating to another city, state or country with your child? If so, you'll likely need the consent of your child's other parent.
Read on to find out more.
Do I Need the Other Parent’s Consent to Relocate My Child’s Residence?
If the Court has made an Order granting you sole parental responsibility for where your child lives, then you do not need the other parent's consent to relocate.
You will need the other parent's consent if:
- There's no Order for parental responsibility and your relocation is likely to make it significantly more difficult for your child to spend time with their other parent; or
- There's an Order for equal shared parental responsibility in place.
This is because a relocation that makes it more difficult for a child to spend time with both parents is considered to be a major long-term issue. And so, the decision must be made together.
What happens if I relocate with My child without the other parent’s consent?
If you relocate with your child without consent from their other parent, then they may make an Application to the Federal Circuit and Family Court of Australia (FCFCA) requiring you to return with your child.
Do I have to go to Court if I want to relocate?
You don't have to go to the Court if you want to relocate, but you should discuss your proposed move with the other parent or consider attending Family Dispute Resolution with them. This is so you can have an open and honest discussion regarding your relocation plans, and see if you can reach an agreement to avoid going to Court.
If an agreement is reached, it can be formalised with a parenting plan or consent Order. A family lawyer can assist in negotiating and formalising any agreement into a either option.
If you're unable to reach an agreement, you'll need to apply to the FCFCA. Before applying to the Court, you should seek advice from a family lawyer.
What Does the Court Consider in an Application to Relocate?
The most important factor the Court will consider is: what's in the child's best interests? In deciding whether a parenting Order to allow your child to relocate with you is the best option, the Court will consider the following factors:
That it's in the best interests of your child to have a meaningful relationship with both parents - if it's safe to do so. A meaningful relationship doesn't necessarily mean an “optimal” relationship.
Your reasons for wanting to relocate. You don't need to show "compelling reasons" to support your desire to move, but you'll need to give evidence that supports that relocating is in your child's best interests.
Your right to freedom of movement should be balanced against your child’s best interest. But, your child’s interests will come before yours.
The advantages and disadvantages of each parent’s proposal. For example, if you're proposing to move because you've gotten a new job or promotion that puts you in a better position to provide financial security for your child.
The extent to which each parent has either fulfilled or failed to fulfil their parental responsibilities - especially after separation. The Court will consider whether your child's other parent will still remain committed to them if relocation isn't permitted.
How you've historically promoted your child's relationship with their other parent. For example, if you're looking to move and have a history of being unsupportive of the relationship between your child and their other parent, this may cause a significant issue.
If you're the primary carer, the Court will consider the impact on your parenting capacity if you're not be permitted to move. However, this will be viewed from the perspective of what's in your child's best interests.
The practical difficulties and expenses that will occur for your child to see and talk to their other parent if they relocate. The Court will also consider whether this will affect your child's right to have a meaningful relationship with both parents.
The nature of your child’s relationship with you and their other parent, both now and in the future.
conclusion
While it may be difficult, it's not impossible to obtain an agreement or Orders from the Court allowing you to relocate with your child. If you're considering negotiating your relocation with the other parent or making an application to the Court, we recommend you seek legal advice from a family lawyer.
Get in touch with us!
If you are considering relocating with your child, we can provide you with advice on your prospects and what evidence you will require to establish that the relocation is in your child’s best interests. Please fill out the enquiry form below for an obligation-free appointment.
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