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Relocations 101

Ex wants to move with kids even though we are Joint Primary carers.

Brief history : I have 2 children 10 & 6 & have recently (3 months ago) separated from wife of 15 years.We're both living in the same area & both children spend equal time with each of us (7 nights per fortnight). Our financial agreements are robust & I'm paying above the CSA Child support rates which is fine with me.

I moved out of the family home & am renting another house 2 minutes away.

We have a mediated agreement specifying that we are "Joint Primary Carers". We don't have any orders at this stage.

There are no underlying issues of domestic violence, drugs, alcohol etc with either of us.

The children still attend same school and part take in all activities from pre-separation times. We both provide the same level of care to both children & I don't plan on reducing my contact & time with the children.

Wife has recently indicated that she wishes to move about 10 hrs away (in same state) closer to her mother & wants to take the children with her.

I guess my simplistic questions are
  • Is there some where with info about rules & regs for relocations ?
  • Outright, can she just up & go with the kids given our mediated agreement (but no orders)?
  • Realistically can she move with kids to another area (25 minutes away) making it difficult for them to continue at current school etc. without my agreement?

"I know that you believe you understand what you think I said, but I'm not sure you realise that what you heard is not what I meant."

 
To answer your questions:

1. Re rules or regs - Usually the mother wins such cases unless the court sees her as less competent to provide emotional support to the children than the father.
2. Yes she can just up and go with the kids, although you can do the same. Mediated agreements are not enforceable by a court.

Hi there, as a mother who applied to relocate in 2006 for similar reasons I can tell you that NOT every mother wins their case at all. In fact, there has been a lot of restrictions placed on any parent who wishes to relocate without a substantial reason.
I cannot think of any 'rules or regs' but maybe a good place to start would be to look at the case law and get a 'feel' for what the court look for in such cases. Above and beyond, the interests of the child must be met above a parents wishes etc etc. Rosa and Rosa is particulary interesting and can give you some indication of where the courts are coming from on relocation although each case is individual and is treated as such.
Fairgo is right, without an order in place either one of you could 'up and go' although I would not recommend the mother do this at all. Looking at your arrangements I think Mum will have a difficult time proving that moving closer to family will be beneficial if you are an active Dad who is involved (by the way good on you!).
Mediated agreements, again Fairgo is right, not enforceable I don't think.
Re: 25 mins away, yes she can (see above).
I am not a lawyer, just a person who has been through the process and about to again! Good luck and check out the case law, heaps of useful guidnace there for you and might I add a big pat on the back for being an involved Dad!
The stats show it is a toss of the coin, 50/50 roughly. It is not easy to relocate and a number of recovery applications (Made on an urgent basis) have been very successfully made in the Federal Magistrates Court where a parent has unilaterally decided to up and relocate… Relocation cases are difficult to determine an outcome because one critically important factor is the relationship the children have with their peers, school friends and other localised family members. How difficult will it be to maintain a SIGNIFICANT relationship with the other parent and note I capitalise significant…

Loujane has made comments that should be noted.
Loujane said
although I would not recommend the mother do this at all. Looking at your arrangements I think Mum will have a difficult time proving that moving closer to family will be beneficial if you are an active Dad who is involved (by the way good on you!).
The first port of call is mediation. Failing an outcome that meets expectations a certificate should be obtained and applications for orders made. If the relocation has happened already then immediately lodge for recovery orders to bring matters back to the status quo. If you are an involved father it should not be difficult to revert the situation to some sort of interim holding pattern while matters can sorted out longer term. 25 minutes away is not a significant relocation but 10 hours away definitely is. As already made clear both of you can do what you like currently i.e moving 25 minutes away making it difficult to go to the same school. There would need to be 'Orders' made for that situation to change but my experience is that Magistrates do not like to see children removed from school and surroundings without some extraordinarily good reasons.

There is a LOT of information on the site here about relocation cases and although there is much case law I suspect every case would be dealt with on their individual merits with the backdrop of the Family Law Act provisions very much at the forefront of any decision. Just because you might have parents 10 hours away and want to move back home is not sufficient reason on its own. Financial circumstances and arrangements on how mum is living and able to live can have an influence. At the end of the day it has to be about the children and at 10 its almost time for views to be considered. Certainly mediation should be engaged in sooner than later. You could also have the school talk to the mother about the disadvantages of relocating at particular streams. Junior School end and Middle school end are probably appropriate times that a school change could happen as the school program is based over a number of years and schools do not teach the same piece of the program at the same time. If you changed school in year 1 of a two year program then it may be that some parts of the program not taught yet in school 1 have already been covered in school 2. There are many factors to consider.

Executive Secretary - Shared Parenting Council of Australia
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