One of the issues that all family lawyers will have had to deal with at some time, and probably on more than one occasion, is where a client wishes to relocate with their children following a divorce.
Many parents are under the misconception that simply because when the divorce was finalised in court the order was that the children live with them that they have the right to take the children to live anywhere they choose. That is simply not the case.
The first hurdle they face is that in Australia, family law does not normally grant what would be described as custody of any children when a marriage ends. Instead, the principle of equal parental responsibility applies. This means that any of the major decisions relating to the children needs to be discussed between both parents.
More importantly, no decision should be implemented until both parents have agreed to it. This applies to areas of the child’s life such as their health, their education, and where they live.
Expanding on the point about where they live, it does not necessarily mean that a father, for example, will strongly object to the mother moving from one property to another, if it is still in the same area.
However, if the mother plans to move with the children to a different city many miles away, or even to a different territory, that’s where family law draws a line.
The primary reason for this is that apart from the equal parental responsibility principle not being held up due to the fact that a father possibly being hundreds of miles away from his children, there is no small matter of visitation.
Again, family law in Australia means that courts, unless there is a very compelling reason for not doing so, will always grant visitation for the parent that the children do not live with. Even in scenarios where that visitation is limited in some way, such as supervised only, the court still expects it to take place.
In other words, if one parent decides arbitrarily to relocate to such a distance away that visitation simply is not possible then that goes against the court order, and for that, there will be ramifications. These could include the current parental order being amended, and that may not be in the favour of the parent who relocated unlawfully.
All the above does not mean that relocation cannot ever happen. However, there is a process which must be followed. Ideally, a discussion should take place between the two parents to establish the details of the relocation. It could be that if is to be a distance that makes the current visitation arrangements untenable, then others might be agreed.
An example of this could be that the father has increased long term visitations where the children spent more school holiday time with him than previously. There could also be an arrangement where the number of weekends the children spend with their father is increased.
If no agreement can be reached, then the parents and their legal teams will have to attend court. The court’s main concern will always be what is in the best interests of the children. A father citing his rights, or a mother demanding that she be allowed to move for a ‘clean break’ is not going to cut it.
Instead, the court will listen to both parents, and possibly the children too, before deciding whether the relocation can take place, based on the benefits to children of it occurring.