Relocation is when a parent moves the children to a new address and that move makes child contact arrangements more difficult for the other parent.
Relocation may mean a far greater travel distance, interstate or even overseas. Since Australia is a large country a move in the same state could mean a severe increase in travel times.
Even moves within the same city areas can be problematic, as an example a move from say the Eastern suburbs of Sydney to the Blue Mountains may be geographically only 80 kilometres but can easily be a journey of 3 hours. Even moves within large cities such as Sydney and Melbourne may increase round travel times by 2 hours.
International relocation can create substantial changes to child contact arrangements, there are however situations where some international relocations are no more problematic than an interstate relocation in Australia. An example would be a parent wishing to relocate from Sydney to Perth and another wising to relocate from Sydney to Auckland. One is an interstate relocation and the other an international relocation, however from a practical point of view the cost of travel and the time taken would be very similar.
Most relocation cases (90%) are when a mother or father wishes to relocate and when either parent has applied to the Court to relocate or to prevent relocation. As a rule of thumb in 2014 only 50% of cases succeeded so one might say the Courts decisions are evenly balanced in either allowing or not allowing relocation.
Courts will normally hear the case on BIC (Best Interests of the Child) principles because relocation may make it substantially more difficult for one parent to maintain meaningful contact with the children.
A court will make determination based on multiple factors including:
- The age of the children
- The existing arrangements
- The impact on the children as they get older
- Additional factors that parents need to take into account are
- Less contact may equal greater child support payments
- The cost of additional travel
Are when a parent has moved without discussion with the other parent and even knowing the other parent will strongly object. These cases tend to be strongly fought and in general the Courts take an extremely negative view of one parent making arbitrary decisions of this nature especially when any existing orders may stipulate consultation and when it has a substantial impact on the children. The children may be ordered back and it is not unusual for the Courts to reverse the ‘lives with’ parent status.
If you intend to relocate
Ideally you should discuss the issue with the other parent and carefully weigh up the factors involved in the children having less contact. You should offer alternatives to maintain a meaningful level of contact. If the matter goes to Court you will primarily have to satisfy the Court that the children will not be substantially affected by such a move. Often the parent intending to move has not given enough consideration of the impact on the children or offered a range of viable alternatives.
If you are against any relocation
If the other party will not discuss the matter you have mediation and then the Court option left. Again you will have to satisfy the Court that such a move is not in the best interests of the children.
Where matters are urgent there is a pathway to bypass mediation.
Emotional issues and perceived loss of contact tend to play a major part in one party objecting to a move. Ideally you need a third party who is separate from the issue and the children to provide advice. Conversely some parents move to deliberately thwart the children's contact with the other parent and this presents an additional challenge to the Courts and may often involve a change of ‘lives with’ case being initiated.
Orders or No Orders?
If you are intending to relocate or are against relocation an existing set of orders can either work in your favour or even against you. You may have orders that actually specify a particular type of boundary area for the parents or a particular type of mediation if the situation did arise. If you have conventional orders that specify joint responsibility then the Court will have expected both parties to have some form of discussion on such an important issue.
If you do not have orders then a Court will weigh the existing levels of contact ie the existing Status Quo.
Applications to the Court
In general you cannot lodge any type of application in a Family Court without a 60i certificate, however in many cases where there is sufficient proof that a relocation may be taking place immediately or has already occurred the Court will deal with it as an urgent matter and mediation will be dispensed with and you could get before a Court within days
If you have reasonable grounds that the other parent may be intending to take the children overseas then you can apply for an urgent hearing for an Airport Watch order which will prevent the children leaving Australia whilst the Court process is underway.
When relocation involves substantial additional travel albeit by public transport, car or aeroplane both parties need to consider the consequences in terms of both cost, time and the physical and emotional impact any additional travelling has on the children. In general young children do not travel well for long distances and many hours in a car can impact negatively on children.
Major airlines will allow young children to travel as unaccompanied minors however even a short aeroplane flight generally requires additional time milling or queuing around in airline terminals. In Australia and New Zealand at domestic airport parents can meet the aircraft at the gate.