Something very cute happened this week. The Bachelor in Paradise finale aired and we got to watch Glenn and Alisha and Mary and Connor commit to relationships with one another and leave Paradise together. Nine months on and according to Instagram both couples are still going strong, and it even appears that Mary may have relocated to Tasmania to live closer to Connor, who lives there.
But here’s the complicating part: Mary has a daughter from a previous relationship. Please see the very adorable photo of Mary, Connor and the child in question.
So, can you simply relocate to another town/city, state or country with a child from a previous relationship, or is it more complicated than that? If the relocation is a short distance from the other parent (say, no more than an hour away), and won’t change the child’s circumstances significantly (for instance it won’t involve a change of school) it is generally acceptable to move without the other party’s permission.
However if it is a more significant relocation, unless you have a Court Order providing you sole parental responsibility for the child and the child spends no time with the other parent, you really need to first obtain that parent’s consent, or if they don’t consent, an Order of the Court permitting the relocation.
If the other parent does consent to the relocation, you should agree on some parenting arrangements which provide for the relocation and how the child will communicate and spend time with the other parent. These arrangements should be drafted in a formal document (either a parenting plan or Consent Orders) and signed by both of you. You should seek the assistance of a family lawyer to have this agreement negotiated and drafted.
If the other parent doesn’t consent, you will need to make an Application to the Court seeking Orders allowing the child to relocate. Whilst the Court cannot restrain adults from moving wherever they like, they can restrain adults from relocating children. If the relocation in question is within Australia, the matter will likely be before the Federal Circuit Court. If the relocation proposed is to another country, the Family Court will be the appropriate Court to determine the matter.
To commence the proceedings you will need to file an Initiating Application setting out the Orders (including about relocation) that you seek. You will need to set out provisions for how the child will communicate and spend time with the other parent. You will also need to file an Affidavit setting out the evidence you rely on to support the relocation and a Notice of Risk. You should seek the assistance of a family lawyer to prepare these documents.
In determining whether the relocation should be permitted or not, the Court will consider whether the relocation proposed is in the child’s best interests or not. The Court will consider a number of factors in deciding this, including but not limited to:
- How the relocation will impact the child’s relationship with the other parent;
- Whether the other parent will still be able to spend time with the child which would allow a meaningful relationship;
- Whether the relocation would improve the child’s quality of life or not (for instance, whether they would have better or worse educational opportunities);
- The impact to the child of the significant change in circumstances, and separation from their known environment and people (such as grandparents, step-siblings etc);
- How the primary carer’s parenting capacity will be effected if the relocation is denied.
If a parent was to significantly relocate a child’s residence without the other parent’s consent, there is a high possibility the Court would make a Recovery Order (an Order requiring the child to be returned to the area they had been relocated from). If you want to relocate with a child, or your child has been relocated without your consent, it is important to obtain legal advice as soon as possible. If you need assistance with a child relocation matter, book an appointment with our family law associate, Emily Ostler, today.
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