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Why Relocate

Yes one lot of mediation, she would only discuss the move, and because she wouldn't allow the dad to talk about anything else, she and now her solicitor are staing that dad gave his consent to the move. It is a year down the track, there is no information coming from her about health and education. The gp and school give very little info (the gp won't speak with the dad).

Interestingly enough though, the school enrolment forms are dated the day after the one and only session of mediation. And the little guy needs regular specialist check ups. Her closest is 3.5hrs away. She just doesn't take him.

On top of this, dad is self employed so doesn't get holidays, so he only sees his child in the evenings which is why this didn't see the light of day in family court. Don't have a spare $70k to splash around.
Andykay, I am sorry.

I would suggest making contact with the SRL advisors on this site.

 I personally am involved in a relocation issue myself but am not at the legal stage yet. My ex is open to the idea of me and the children relocating, but is using it as a means to deprive me of rights in property settlement, even though there is no certainty to my relocating - I have a lot more research to do on the proposed move, and though it makes economic sense it may not be right for the kids in the long run.

If any are interested, I am willing to keep the forum updated as my case proceeds, i.e steps i take and whether they assist, either legally or with easing the whole process along, or not. Let me know if this would be helpful.
wicapixie said
I note that in all of this the common theme again, is "should the relocating custodial parent be allowed to relocate?"….

Is there any reason why the non-custodial parent cannot move to be closer? And any reason why they can't be ordered to follow the custodial parent (except in DV cases), just as custodial parents are ordered to remain near the non-custodial parent?

I find this amazing (and discriminatory against the custodial parent, by not allowing this parent to order their life as best they can to provide for their child, even though they have been awarded primary care) - particularly if the custodial parent is moving to improve the economic status of the main supporting family - thereby enhancing the child's welfare - which surely is in the best interests of the child? Extended family are important yes but many families worldwide live miles, states, countries and continents apart.

I don't believe that the Family Courts can or have stopped any parent relocating, nor, I believe can they force an adult to relocate. I believe such a decision would very easily be contested as being in contravention of human rights. What the courts have done is to allow or disallow relocation of the children and to also introduce stipulations that would have consequences. All of these decisions are based upon the decision makers interpretation of what they believe is in the best interest of the child or children.

However perhaps what I believe is incorrect so perhaps you could point to a case where a parent has actually been stopped from relocating, instead of simply having had pressure put on them to do what has been considered best for the child.
Hi Mike T,

You are absolutely correct in that it is always framed around the child's best interest.

However, generally speaking, there is a much larger percentage (though this changing and rightly so) of custodial parents that are mothers. Mother's do appear (in my general opinion - not to offend anyone) to have a much harder time of letting their young ones go, particularly (and back to both genders as parents) in circumstances, where to leave the child behind they have genuine concerns about the level and quality of care the child will remain in, even though the child then retains his/her extended family/friends.

There is one case in particular that stands out to me… Unfortunately I am due in court very shortly though, so I will find and post later tonight.
relocating can work if both parents put the child first and allow time for both families. Children are adaptable and capable of giving voice to what they want at earlier and earlier ages these days. Time spent in both directions can enable a child to decide, if the parents are able to listem and act in the childs best interest to the best they are able physically and financially.
I have found the case I was refering to above (U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002)), and can also note with great interest that I was told by the registrar today that relocation cases may not be decided for a while.

A recent case (I believe it was mentioned as Rosa) was overturned by the High Court, the reasons behind which have not yet been handed down. It is also possible the government is about to change the legislation in this area.

The registrar believes that after this decision relocations will become a more fluid process, rather than the huge stumbling block they are now. Which is not to say they will be easier to push through at all, merely that there will be case law and a definitive? judgement dealing with this specifically, I believe.

However, that is the opinion of one man, be he a very learned one. Until the actual reasons are laid out, the issue is still contentious and there is a possibility that magistrates will cease hearing these cases until they have the opportunity to aquaint themselves with the details.
Wiccapixie said
A recent case (I believe it was mentioned as Rosa) was overturned by the High Court, the reasons behind which have not yet been handed down. It is also possible the government is about to change the legislation in this area.

The registrar believes that after this decision relocations will become a more fluid process, rather than the huge stumbling block they are now. Which is not to say they will be easier to push through at all, merely that there will be case law and a definitive? judgement dealing with this specifically, I believe.

However, that is the opinion of one man, be he a very learned one. Until the actual reasons are laid out, the issue is still contentious and there is a possibility that magistrates will cease hearing these cases until they have the opportunity to aquaint themselves with the details.
 
The judgment referred to is already available, since November. However if you read the obiter dicta (statements by the way) you will find that the reasons for judgment in the matter are case specific, a mother being required to reside in a very remote town, if you could even call it a town. There was a lot of public policy issues to say the least that are discussed. I don't believe the matter is one that provides a blanket case law reference for all relocation matters. 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
Wiccapixie,
               from what I understand of U v U, the mother hasn't been forced to stay in Australia and that her humanitarian right's were not infringed, rather that they were given consideration. In U v U it says :-

U v U said
#  Article 13 of the Universal Declaration of Human Rights, now Art 12 of the International Covenant on Civil and Political Rights relevantly states as follows:

    "…

    2 Everyone shall be free to leave any country, including his own.

    3 The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant."

# The appellant argues that the proper interpretation and application of the Family Law Act in this case required that the trial judge make an order as to the relocation of the child to India with the appellant, because to do otherwise, would be to place an unacceptable restriction upon the appellant's freedom to leave Australia.

# There are two answers to the appellant's argument. The first is that whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent. The second answer is that the primary judge did weigh up and treat as a relevant, important consideration, the appellant's wish to return to India.

Also from what I read the mother agreed that a potential solution was that she be the lives with parent as long as she stays in Australia and it would appear that this is why the Judge made such orders. I don't believe that the orders restrict the mother solely moving to a location not covered by the orders, but that the orders apply to the mother and the child as one.

Thanks for posting the link, it was interesting and informative.

 
I would express the fact that because the family law court is run on personal opinion that decisions vary due to evidence and situation.

There are still some matriarchs of the system that have unreasonable bias but can explain their decisions in a way that meet the criteria of the rules.

It could be that the Judge has not been convinced by the evidence that has been provided and the decision has been made for the right reasons considering the evidence provided just as much as it could be due to personal bias that may be hidden.

The family law system itself can not force a parent to move but it can force children to relocate via a return order or agreeing with requests to relocate. This then becomes a simple choice, see your child by moving, adjusting contact criteria or don't see your kids.

As parents we have a responsibility to our children to consider all aspects of their lives with the other parent and try to encourage that relationship, this means not only do we need to be aware of the child's right to have good productive contact with the other parent we also need to consider whether what we do prevents that other parent having a meaningful relationship with our children.

If a parent moves out of a child's life willingly we are left with the problem of supporting the child through the emotional upheaval but I do not consider it fair to move a child away from it's parent unless it is rather agreed to by the other parent or highly justified and beneficial to the child to the point the child is suffering where they are.

One of our new members who has referred to themselves as " The new stolen generation " may be able to give more personal insight regarding the woe's of children being relocated on whims away from their parent or parents. Needless to say when relocation comes for a child it is distressing enough let alone taking away one of their parents and extended family.

If both parents act in the best interests of the child      or they can negotiate strategies to an agreed upon move there will be no court case or conflict  kalimnadancer. This means that in adversarial situations one or both parents are trying to influence the child to their own cause, because of the extent some parents will go to manipulating a child or influencing them the child has not the luxury of free will. You would not be able to rely on the child making a decision that is of free will.

In adversarial situations emotions and hardships are used as a tool, even though these things may not be able to be proved and they are not related to the child's best interests they can still influence a case.

When objecting relocation you are not only establishing what is in the best interests of the kids but also the emotional claims of the other parent, financial effects of the move on both parties, disruption to the child life with their peers as well as the prejudice of the system towards dads ( with some judges after all their human ).

andykay you have little option but to pursue this through the family court if you want to change things, your partner can self represent to reduce costs but I would suggest he would need to change aspects of his work life to accommodate better contact when his kids are there.  
Yes D4E, we are aware of the need to change aspects of his work life, but that is a little easier said than done. He was self employed long before the child was relocated away from all family bar the child's mother. I, myself, have been unemployed for 6 months now, and have had no success gaining employment dispite extensive job searching.

The interesting thing to note was that the mother's offer was for all of the school holidays less two weeks at Christmas (alternating Christmas each year). When asked "what if I can't get time off work" her response was "put him in child care". Interesting concept, and also it meant that she would not be responsible for any child care costs during school holidays if she couldn't get time off work. It also meant that she does not have to care for the child full time during school holidays, except for two weeks at Christmas. On a personal note, I, on occassions, feel like I am the holiday baby sitting service. Yes, I know I shouldn't feel that way, but I do. Prior to the move, she was only willing to allow my husband to have two weeks of holiday a year. She couldn't seem to comprehend that she and my husband did not have to have holidays at the same time. This was what was alluded to in mediation (even the mediator couldn't see the issue). No parenting plans ever signed as the mother constantly wanted to change things even after agreeing.
Theres a few things that will effect how this will be perceived if you go through court, as you would understand the amount of time that has expired before taking court action will effect things, at times quite dramatically.

I understand that it is not easy to manage time when self employed, lets face it customers do not want to know your private life they want their job finished. How ever in saying this if you want to show good reason why the move is unfair you have to provide and show you are committed to time with the kids, luckily he has you who the children are confident and comfortable with.

Although it seems to be shunting the kids off during the holidays to reduce her expenses it will be beneficial for the kids to spend time with them in a block amount but I'm not sure not seeing their mum for 5 weeks is the best solution for the kids and this may cause them a few problems especially if they feel stuck or abandon.

As the children will be in child care whilst with their mother putting them in child care whilst at dads will not seem such a big step though I agree whilst they are there the idea would be to spend quality time with dad.

I can understand why you would feel like a baby sitting service and to tell the truth in many cases there is little to no appreciation for what is done.

Parenting Plans are not court orders and although they will be considered in final orders as an influence to a decision they are not automatically made into orders, basically with Parenting Plans you    have little to no means of forcing them to be abided by.

Many would see that a compromise of block time infact more than what there was prior may be a good solution, not always and perhaps not the person it is being inflicted on but on a whole. It's another prejudice that needs evidence provided that it is not a possibler alternative. At the end of the day he does not have to accept her proposition    but do your home work and compile the reasons why it doesn't work.

My personal thought is take as much as what you can get, make the time count for the kids and be there while you can. It may be too late to reverse the relocation so anytime with the kids at all holiday periods will help the kids for sure.

All best D4E  
Actually the care has gone from a total of at least 104 nights down to just under 70, so a bit of a reduction, definitely not an increase. We do the best we can with the time that we have. He doesn't seem to worry about being away from her for extended periods. She has even had trips down here to see her family and has not allowed my husband to see his son (one occassion was two days before my husband's birthday as well).

He sought legal advice prior to the move, and could not find anyone who would even consider that he had a snowballs chance. Looking at recent judgements, though there does appear to be a slight change happening in the wind.

Last solicitor said to just get as much as he can in consent orders. Currently we don't get advised when he is sick, what he is doing at school etc, nothing about what is going on, and a young child can't remember these things. Contact with GP appears to have been restricted by the mother somehow (there was previous communication, now the GP won't speak), and the school is also very lax in it's communication. No opportunity to discuss school report, because it was received after school closed for the year, that sort of thing. It is very frustrating. And the mother's solicitor, well that's another story. As alluded to in another post by another poster, threats and blackmail seem to be intheir bag of tricks, but we know that if the client doesn't want to provide a response, then the solicitor just goes by the client's instructions.

Have attempted to join srl, will have to follow that up.
It appears that you have had some bad experiences with lawyers and legal advice, truth is for quite some time dads have been fighting relocation with varying success.

As your partner had about 28% care this would have had to be considered, you would have to provide proof of this contact and should establish the evidence for future use.

Doctors and Schools are in an uneasy position with regards to children and although there may be certain obligations many requests or sharing of information may need a court order to access this.

Lawyers, Solicitors and such are just doing their job, some do it better than others and some are simply lazy and do the same thing every case. Attempt to influence you by brow beating and bullying are of the norm but in most cases they operate close to the tact.

Best of luck
Here is a relocation case published today 'Relocation not allowed'.

To give some guidance, if a parent has unilaterally relocated, the children may be ordered back rather than the parent and two sets of orders could be made, one if the parent who has moved wants to stay and the second if they wish to move back. Note that in this type of example the Court has not interfered in 'their right' to move but has used 'BIC' as the overriding principle.

If you are in a FAMCOURT you accept the jurisdiction of that Court which means the Court has the power to override any of your 'so called' constitutional rights in favour of 'BIC'. This can mean the Court can order you not to relocate.


Attachment

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Newbie with issues

Hi All,

I am a newbie here so please excuse me butting in but I am on a search for info. I have found some very exciting judgements from the Family Law Court in stopping inappropriate relocations that affect fathers and meaningful relationships with thier children. I have saved copies for my own reference.

I too am faced with a situation that will now require court intervention to return my children to thier birthplace surrounded by family, both mine and hers. Athough the distance involved is not great it is still significant to reduce the status quo of 3 out of 9 days to no more than 2 weekends out of 5. A bit of background. I am a shift worker and I work 12hr shift 2days/2nights, 5 off. I have worked shift work since before we married and have worked this extended hr roster since the birth of the children, hence the odd looking arrangement of 3 out of 9 days (4 work days 5 days off shift). I have always been an active and frequent particpant in my childrens lives through all stages of thier developement. Mothers group, pre-school, school, sporting activities. I have 2 children, twins aged 10yrs, 1 boy 1 girl.

We do not have a parenting plan in place as mediation failed due to my ex's animosity to me going on a holiday in mid yr and moving on with my life. I now have a girlfriend, divorcee herself with children from a previous marriage but she never did experience these sort of issues with her ex. They have an amicable relationship which I envy.

Recently we had our first court appearance to present our case and set down dates for settlement conference and child mediation via court appointed mediator. 5 days after this my ex advised me that she was moving to the other side of Sydney, 65km's away, over an hrs drive. 7 days after that she has now moved and is situated with the children totally removed from all thier family and school friends and now during school holidays away from friends they would normally spend much time with over the Christmas school holiday period. I was not previously advised of her plans and am now anticipating that this will be a labourious and drawn out affair. We have sought an urgent intervention to her doing this but the earliest court hearing we could get was Feb15 next year. Obviously now the kids are enrolled in a new school and again of which I had no input in deciding.

Her family lives around my area and so too my family. My children have cousins and thier grandmother in my area. They have no relatives other than my ex's aunt in a nearby suburb. She has moved there to enable her to work in her job 5 days in school hrs as opposed to 3 days part time and driving from our home suburb. She has put her choice of work ahead of the Best Interests of the Children (BIC). In my eyes I can't forsee any court agreeing that she has done the best for my children. I feel she is so full of animosity at myself that she is blinded by it and it is totally clouding her mind with what is and isn't appropriate and in the best intersets of my children.

I am just dumbfounded at her actions. I have, since our separation earlier this year tried to give my children the best of both worlds. ie mine and hers. She continually claims I have made it as hard as possible for her. Again, I can't see this as true as I have paid her appropriate CSA since our finances were separated, I have paid all school fees for the children and I have paid our health care plan and also picked children up after school so she could work longer as required to enable her to get full pay. Both children play sports for local clubs in soccer and netball. It just defies logic and sensibility to remove them from everything they know and love. I enjoy being invovled in thier lives and schooling and place them as my main priority in life.

I would be interested if anyone has any reference to similar situations and whether the court is more likey to find in my favour or hers. Thanks in advance.

Rgds,

Newleaf.
You did not give the outcome of the initial hearing however you should have been seeking interim orders that she could not relocate. Since you have a case in the system you might be able to file a recovery order.
Hi,

Thanks for reply. The outcome was only setting dates for Consiliation and mediation. At this time we were not aware that she was going to move. Original court date 7th Dec. She told me she was moving on 12th Dec. She moved 19th Dec. My barriater tried to lodge urgent application to get before judge this week but due to back log and lack of judges FamLawCrt could not give us a time before 15Feb next year.

Newleaf
I have seen the local or district courts used for requests for recovery orders etc... The only other option you have is to keep the children next time you have them. But how would this fit in with your work schedule?
My barrister has lodged an application with the Family Law Court in Parramatta where original case is filed. We will be appearing 15th Feb to lodge application for her to return children to original community/school. If she can't or doesn't want to return to area then children are to reside with me until matter settled in court at a later date.

I have thought of that. As we have no orders or parenting plan or agreement in place then if I assume shared and equal responsibility I can re-enroll them in thier old school. Unfortunately the children will be the most affected and I wish not to put them under undue stress. It appears as though my ex doesn't have that concern.

My Barrister has been involved in the Fam Law Crt since inception and is well versed in all the changes that have occurred over recent years so I have every confidence in his ability to act in my childrens best interests.

I am of the understanding that the court may appoint a Independant Childrens Lawyer to protect thier best interests.

Thanks for your interest.
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