Separating from your partner and relocating with your child: how does the law work?

Moving to a new city or State can be an exciting prospect in terms of employment, proximity to loved ones – or simply for a fresh start. However, after separating from a partner with whom you share children, relocation becomes more complicated. Our team of Family Lawyers here in Melbourne explain the laws around relocating with children so you can understand what to consider and what to expect. This information is relevant whether you are planning on relocating with your child or children following a separation, or whether your ex-partner would like to relocate.

The basics of Family Law

The laws and protocols around families and children is contained within the Family Law Act 1975. When it comes to issues concerning children, all matters are governed by one guiding principle. That is that the Court will always make its decision based on the best interests of the child. This includes any case involving relocating with children.

As a parent, you know what is best for your child. In the eyes of the law, the best interests of children are met by:

  • allowing children the benefit of both parents having a meaningful involvement in their lives (children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development)
  • protecting children from physical or psychological harm
  • ensuring children receive proper parenting
  • ensuring parents fulfil their responsibilities in regards to the care of their children.

These points are assumed to the maximum extent consistent with the best interests of the child.

Parenting arrangements/orders

Upon separating, ex-partners will come to some kind of arrangement – whether that be verbal, written or put in place by a formal court order – about how the children of the relationship will be cared for. This includes how much time the children will spend with each parent. Parenting arrangements or orders are important within the context of relocation, as these arrangements will likely no longer be practical if the move goes ahead. This is important to remember through the next steps in the process.

If you and your ex-partner agree

Coming to an agreement on your own terms is the most desirable outcome. For example, a common arrangement is that the parent who is not relocating will look after the children on school holidays, to make up for time missed.

If you and your ex-partner have come to a mutual agreement around relocation and relevant parenting arrangements, then you should formalise this arrangement either by consent orders or an official parenting plan. You should seek legal advice before entering either.

Formally documenting your arrangement is important so that each party understand exactly what they are agreeing to, and to avoid disputes in the future.

If you and your ex-partner cannot agree

If you and your ex-partner would like to agree but need help to reach a final agreement, you can undergo dispute resolution with the help of Family Law experts.

If this is not possible, then you will need to apply to the Court asking for an official order which allows you to relocate with your children.

Similarly, if you would like to stop your ex-partner from relocating with your children, you can also ask the Court to make an order to prohibit them doing so. This court order could include parameters such as the child’s residence being within a certain metropolitan area, or a defined distance from their current school.

The Court will consider whether the move is in the children’s best interests, with consideration given to an adult’s freedom to relocate if they wish.

What if there was a relocation without consent?

Relocating with a child without the consent of the other parent, or without a court order, is known as ‘unilateral relocation’. If there is a unilateral relocation, the Court will likely order that the child is returned.

If there is a court order in place and the unilateral relocation means that this agreement can’t be followed, this is a considered a breach. Breaching your court orders can have serious implications, including fines and even imprisonment in some cases.

If you have relocated without the consent of the other parent of your children, or vice versa, you should seek legal advice.

What about the wellbeing of parents?

As mentioned – the paramount decision in court matters involving children is the wellbeing of the children. That doesn’t mean; however, that the needs and wellbeing of the parents aren’t considered as well.  

For example, the court will consider the location of the proposed move, and whether (or whether not) that location will improve the mental health of the relocating parent. This could come in the form of increased family or social support, for example. Another factor is whether the relocation is to an environment that supports the parent and child’s culture and religion.

Financial circumstances are also considered in the court proceedings. If the relocating parent will have improved job prospects or their financial situation will improve, or if they have had financial hardship in their present location this will also be taken into consideration.

As you can see, these factors are related to the wellbeing of the parent, but ultimately consider how they effect the parent’s ability to undertake their parental responsibilities.

What if my ex-partner is uncontactable or isn’t in the child’s life?

Each child relocation case is different and will be treated as such; however, if the parent who is not relocating spends little or no time with the child, this will be considered by the Courts, again, through a lens of the child’s best interests.

Furthermore, if one parent has a history of abuse or neglect, then it’s likely that it will be in the child’s best interest to relocate.

In this situation, we recommend engaging the services of Family Law experts to ensure that your decision to relocate will be upheld by law.

A short (but important) note on international travel

If you are separated from your partner and would like to take your child overseas on holiday, you’ll need written consent from the other parent.

While parenting orders are in place, it’s a criminal offence to take or send the child overseas without consent, unless there is a particular and specific order in place allowing that to happen.

Finding the best outcome with Family Law experts

Le Brun and Associates is a leading Melbourne family law firm that can give expert guidance around separation, child residence, and relocation. Our team is ready to support you and understand your unique situation. Contact us today for a complimentary 30-minute consultation.

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