Where there is equal shared parental responsibility of children, each parent needs to discuss and agree on things that major long-term decisions relating to the children (s 65DAC).
Under the Family Law Act, unless ordered otherwise, both parents have equal shared parental responsibility for their children.
Re-locating with the children may be a major long-term decision; that is a decision that will seriously affect the children’s lives in the long-term.
If you are moving, your children will likely need to change schools, treating medical professionals, and it may affect the children’s ability to spend time with the other parent. These are all things that could affect the children’s lives in a long-term way. Therefore, if you are thinking of moving the children some distance away from the other parent, you need to obtain the other parents’ permission.
When parents cannot agree, the Family Courts can step in to make the decision for the parents.
How the Courts decide ‘relocation applications’
The leading case for relocation applications is MRR v GR [2010] HCA 4 also known as Rosa’s Case.
Rosa was a mother who wished to move from Mount Isa to Sydney with her 5-year-old child following separating from her partner. The parties had originally moved to Mount Isa solely for the father’s employment.
The High Court allowed Rosa to move to Sydney after considering a number of factors such as:
- Living conditions – At Mount Isa, Rosa had been required to live in a caravan park which was deemed not an ideal environment for a child with rental accommodation in Mount Isa being scarce and unaffordable
- Employment opportunities – Rosa had limited opportunities in Mount Isa with an opportunity to work full but flexible hours in Sydney. Rosa worked casually in Mount Isa but relied on Centrelink payments.
- Family support – Rosa was found to be depressed and isolated in Mount Isa. Moving to Sydney would provide her with the support of her family.
Relocation must be in the best interests of the children; that is the paramount consideration of the Court. A successful relocation will generally involve a parent moving to a hometown or a place where family support is offered or where a parent may have further financial support or job opportunities. A successful relocation may also occur where there is a move from an abusive partner (Hannigan & Sorraw [2010] FamCA 807).
It is advisable not to move without the other parent’s permission or Court order. Moving without permission or order can sometimes result in the Court ordering the return of the children by way of a recovery order. In the case of Bondelmonte [2016] FamCAFC 48, the father moved the children to the US without the mother’s permission. The mother sought an urgent recovery order in which the Court was satisfied that it was in the best interests of the children to be returned to Australia.
What should you do next?
Should you wish to relocate with your children, you should engage an expert family lawyer in order to determine the best way to proceed. The family law team at FC Lawyers is here to assist in your family law legal matters and to answer any queries or concerns you might have.
Contact our team today to discuss your legal matter.
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