Parents have the freedom to move their children after separation, subject to the consent of the other parent. However, more often than not, the other parent does not consent.
This has become an increasing issue, reflected in a recent publication by researcher Roger Webb (2016), finding that moving as a child is directly correlated with an increase in negative outcomes like criminality, psychological issues, drug use, etc. With this new information coming to light and parents naturally desiring to protect and spend time with their child or children, cases involving relocation have flooded the courts.
One of the most recent relocation cases is Wendland & Wendland [2017]. In this matter, the mother worked in the Australian Defence Force and had to relocate for her job so she sought a Court order to obtain permission to take her child with her. The father appealed this based on the fact that the child had lived in the current location her whole life and was used to spending regular time with him since they had a meaningful relationship.
When two parents have contesting views on a matter of relocation, the judge has to consider the child’s best interest, as in any Family Law matter. In this case, the judge agreed with the father however, he also weighed up factors like the mother being the one to provide the most financial support to the child, the fact that she too had a meaningful relationship with the child, and the positive effect being the daughter of an Australian Defence Force member could have on the child. In a balancing act, the positives of having the child live with the mother outweighed the benefits of denying the relocation and having the child maintain regular time with the father. Therefore, the relocation was permitted.
This case neatly encompasses some important points regarding relocation in Family Law matters:
- If you intend to relocate with your child after separation, you need to have a justifiable reason for doing so.
- The Court prioritises the best interests of the children and will decide whether a relocation is suitable based on this factor.
- You need to objectively weigh up the pros and cons of relocating with the child. If it is more detrimental than beneficial to relocate, you need to deeply consider whether to make the move to avoid the costs and burden of fulfilling a recovery order when and if the other parent challenges the relocation in Court.
If you seek more information about relocation after separation, please contact Nevine Youssef from our Family Law Department on (02) 4626 5077 or by email at nyoussef@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
