Post-separation, it is common to want to move away and start over. However, moving can attract legal consequences if there are children of your relationship and the Court may intervene to prevent one parent from moving with the children.
Can I Move Away with my Children?
You will ordinarily need the other parent's consent to move with your children. This is because relocation is a 'major long-term issue', and if the parents have shared parental responsibility, they must consult with the other parent before making decisions about major long-term issues.
The Court cannot legally restrict your freedom of movement, but orders which provide for where and with whom a child should live may have the practical effect of preventing you from moving by requiring that your children reside in a particular area.
Getting Consent
You do not need consent in every case where a parent seeks to move. For example, if you wish to move somewhere within your current local area, you will generally not need the other parent's consent.
There are no clear-cut guidelines as to the exact distance or limit at which consent will be necessary. This will depend on the following factors:
- The effect of the move on the children's normal routines, e.g., do they need to move schools etc;
- Whether the move will make it difficult or expensive for the other parent to maintain their relationship with the child; and
- Whether the move places an unfair burden on the children.
Can I Prevent my Ex from Moving with the Kids?
Decisions concerning the relocation of your child should be made jointly by both parents. Therefore, you can withhold your consent to your ex-partner from moving with the kids. However, it is difficult to legally prevent your Ex from relocating unless you have court orders in place.
- Court orders can specify with whom the child will live and how much time they will spend with the other parent, and these orders may be breached if one parent moves away.
- Court orders can also require a child to remain in a particular area, suburb etc.
If your Ex says that they intend to move away, in breach of court orders, you may apply to the Federal Circuit & Family Court of Australia for an order restraining them from doing so.
It is always advisable to get enforceable court orders, even where you have reached an informal agreement, to prevent your Ex from unilaterally relocating with the children.
Can I get my Child Returned?
If your ex-partner moves away with your kids without notifying you or moves away and refuses to give you the location of your kids, you should seek urgent legal advice. In these circumstances, the common course of action would be to make an urgent application to the court for a location order or a recovery order.
Location Order
A location order is an order requiring a person or department to provide the Court with information concerning the whereabouts of a child. You may apply for a location order if you are:
- A person with whom the child is to live or spend time with under a parenting order;
- A person who has parental responsibility for the child under a parenting order; or
- A grandparent or other person concerned with the child's care, welfare and development.
Once a location order is made, you may seek an order requiring the Court to provide you with information concerning the child's location.
Recovery Order
A recovery order requires a child to be returned to a particular person. You may apply for a recovery order if you are:
- A person with whom the child is to live or spend time with under a parenting order;
- A person who has parental responsibility for the child under a parenting order; or
- A grandparent or other person concerned with the care, welfare and development of the child.
Once a recovery order is made, it authorises the appropriate persons (usually the Australian Federal Police) to retrieve the child and return them to the specified person.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.