Can I relocate interstate or overseas with my children after separation?
In considering an application for relocation of children the Court will have regard to a number of factors including the following:
- The views of the children
- The nature of the children’s relationships with each parent
- The likely effect of any change in circumstances on children of a separation from either parent
- The practical difficulty and expense of contact and whether the practical difficulty and expenses will substantially affect the children’s right to maintain personal relationships and direct contact with both parents
- The capacity of each parent to provide for the children’s needs including emotional and intellectual needs
- The children’s maturity, sex and background
- The need to protect the children from harm
- Whether there is any family violence and the impact of the violence on the ongoing relationship of the children with their parents
- The Order that is least likely to lead to further proceedings
The Court tends to favour an approach to relocation cases that identifies the competing proposals of the parties and considers which proposal is preferable in the particular circumstances of the case, having regard to the interests of the children.
Following the High Court decision of MRR and GR, the Court must consider the reality of the situation, in particular whether the proposed arrangements for the children are reasonably practicable. This will involve a consideration of, among other things, whether a parent’s proposal for the children to spend time with the other parent is sufficient to maintain the children’s relationship with the other parent. This will be particularly challenging in circumstances where the proposed distance between the parties is great, the cost of travel between the two residences is high and the children have enjoyed substantial and significant time with the other parent.
If you are considering such a move, it is critical to obtain legal advice early, and preferably to be open about your intentions to move. You need to think clearly about how you will facilitate a meaningful and regular relationship between the children and the other parent. Can you afford to cover regular airfares to and from your new home for the children to have that contact? Are you prepared to forsake greater holiday time in favour of the other parent?
Unfortunately there is no easy answer when it comes to the issue of relocation. It remains a balancing act in which the ultimate result will depend on the facts and circumstances of each case.