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If, at any time after separation, your former partner or the other parent of your child or children threatens to move (and take the kids with them), you should take immediate action, regardless of whether you have existing orders or a parenting plan in place.

Such cases, termed ‘relocation cases’ within the family law context, are sadly quite common. Generally, in determining such cases, the Court will consider the following factors:

  1. The freedom of movement of adults – the Family Court cannot impose orders that expressly prohibit one or both parents from moving. Freedom of movement is seen as a constitutional right in Australia;
  2. The status of current orders – the Court will only set aside existing parenting orders in certain circumstances, including, usually, where there is a significant change of circumstances.
  3. The Best Interests of the Child – the paramount principal in any decision concerning children is the rights of the child/ child’s best interests. Section 60CC of the Family Law Act sets out a number of considerations that must be taken into account in applying the paramount principal, and include such things as the religion or culture of the child, the health of the child and the education of the child.
  4. Status Quo – one factor that is often considered in a relocation case is the need to maintain the status quo – for example, does the child have an established social network and are they performing well at school? The Courts are always considerate not to disrupt the status quo unless there is good reason to do so.
  5. The Child’s Wishes – the Court is not bound to follow any expressed wishes of the child, it is obliged to make an independent assessment of what is in that child’s best interests, and make appropriate orders on the basis of that assessment. But a wish expressed by the child, particularly children of high-school age, may be taken into account.
  6. The Independent Children’s Lawyer – in cases involving a high level of conflict between parents, or where there is a real issue in dispute or major change proposed, the Court will appoint the child or children their own lawyer, who will advocate for that child’s interests. The Court may also order reports from independent experts, such as psychologists, to consider in making such an assessment.
  7. Practical Considerations – the practicalities, such as the ability of one parent to travel to see the children, the availability of skype and other technology to facilitate communications, and the proposed living conditions in the area to be relocated to will also be considered.

The law surrounding actual or threatened relocation cases where children are involved is complex, and you should always consult a family lawyer when this occurs. A family lawyer will also be able to assist you with practical concerns, such as preparing court material and placing children on airport watch lists if there is a threat of overseas abduction.

Please note that LegalVision is a commercial law firm and cannot assist with these matters. We recommend you contact your local law society.


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