Relocation in family law refers to the relocation of a child’s primary place of residence to another town, state or country. It has been established by case law that it is not appropriate to relocate with the child without either the consent of the other parent or order of the court permitting them to relocate. But what happens if the relocation is a local move?

This article by New South Lawyers’ Family Lawyers explains the potential responses from the Court in cases where a parent relocates with their children over a short distance, without prior consent from the other parent or an order of the Court.

Relocation rights: Can I relocate a short distance with the children without telling my former spouse?

The concept of relocating was discussed in family law case of Morgan & Miles [2017] FAMCA 1230 (17 October 2007). In this case, the Mother unilaterally relocated with the children 144km from the town in which the parties formerly lived and without informing the Father or obtaining a court order.  In this case, despite the mother’s argument that the distance was short and therefore the Court should not direct the Mother to return with the children to the town the parties formerly lived in,  the Court, nonetheless,  ordered the return of the mother and children to the initial town. The Court in delivering its judgment concluded that “it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move”. 

What does the court consider when making a relocation order?

To determine the proposed move on the child, it is essential to understand that the Court's paramount consideration is the child's best interests. This involves analysing all the evidence, considering any expert reports that have been made and considering other factors such as the views of the child.

Generally, the Court has a wide discretion to make orders when posed with the question of  whether a child should be relocated from their primary place of residence or not.  The Court can decide to make orders including but not confined to orders:

Firstly, approving the application for relocation and making others for the child to spend time with the other party.

Secondly, restraining the  children from relocating, including  a new live with arrangement for the child to live with the non-relocating party and spend time with the relocating party.

Thirdly, subject to the possibility of that both parties can  conveniently relocate,  approve the relocation application on condition that status quo in terms of live with arrangement will be maintained albeit in a different location.

Finally, dismissing the relocation application and restraining the party requesting a relocation order from relocating with the child and  make orders if appropriate for the child to continue living or live with the applicant party and spend time with the other party on condition that the  child’s primary residence will remain the same.

In applications for relocation orders, it is not relevant to establish compelling reasons because the Court primarily considers the best interest of the child.

How does the court determine what is in a child's best interests? 

The Family Law Act 1975 (the Act) outlines factors the Court must consider when assessing a child's best interests. Basically, the law states it is primarily in the best interest of a child to have a meaningful relationship with both parents and other significant persons in the child’s life, provided it is safe to do so. There are other additional considerations that the Court may also take into consideration when weighing the proposed option of relocating the child. However, the Court will ultimately allow a child’s relocation from their primary place of residence only if based on the evidence before the Court, the Court is of the view that relocation is in the child’s best interest.

So, what can we learn from this situation? If you choose to relocate with your child, even if it's locally without discussing it with the other parent, it's highly likely that the Court may make orders for the child to be returned to their primary place of residence. Relocation is a significant decision, and the Court cannot make a judgement without considering all the evidence to determine what is truly in the best interest of the child.

New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.