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24 April 2023

Thinking about relocating? What not to do

In this video, family law partner Justine Woods talks about relocation: how to do it, how not to do it and how to take the kids with you.

In this video, family law partner Justine Woods talks about relocation: how to do it, how not to do it and how to take the kids with you.

Video transcript

Hello, hello, everyone. I’m Justine Woods, the family law partner at Cooper Grace Ward. And today’s topic, it’s mostly about relocation and how to do it and how not to do it.

Separating and considering whether to relocate away

So, I find there’s often a huge burst after Christmas and Easter holidays of people separating and or, and not necessarily at the same time, considering whether they’d like to relocate away from the other parent, taking the children with them. Now, sometimes that’s not contentious at all. If you want to move within half an hour and the children can remain at their same schools, for example, and see the parent in accordance with your agreement or orders without alteration, fine. It’s really entirely up to you.

Australia has parental freedom

And there is always a lot of emphasis on parental freedom where it’s possible and that Australia, even the judges say this Australia is a free country. Really, we’re not in the business of trying to restrain people relocating. But if you have children, you are then obligated where you can, to maintain a meaningful relationship between the children and both parents and to facilitate the children having substantial and significant time with each parent. Now, of course, the government loves to tinker with family law, and these provisions may alter with the draft legislation, but for the present that’s the framework we’re in.

Having good enough reasons to relocate

So, what that means is if you want to relocate, you have to have an a very good reason. Generally speaking, you have to have a reasonable relationship with the other parent so that you can facilitate time and it helps to have the financial resources and the practical skills to make a somewhat long-distance relationship work. So, that is the optimal relocation application if you can meet all those criteria and the children are of a certain age where their bond with the other parent can be maintained despite distance. So, bear in mind, if you’ve got little kiddies, much harder to be given permission to relocate because the social science literature says very small little children need to be seeing their carers more regularly, for shorter periods of time. So, if you bear in mind all of that, big holidays with families, sometimes that makes the unhappy spouse long to be away from their own spouse and closer to their family. So, we see here at Cooper Grace Ward lots of inquiries post Christmas, post Easter in families where there’s been conflict and perhaps now after a family holiday, they would like to stay where their family of origin is. Sometimes that’s grandparents, sometimes brothers and sisters and their children. So now, of course, it’s sometimes has the opposite effect and people shift away further.

Example case of Westcott and Larson

But a good reminder about how to run, or really, I’d say not run a relocation case is a recent case of Westcott and Larson, and in that case the mother said to the father she wanted to move away and take the children with her. He refused. Around that period of time the children had been with him for an extended period of time by agreement and at the request of the mother. When he said no, she went on a little holiday and then she decided not to come back. Now he brought a recovery application, which is effectively to bring the children back to where they were originally living. And the judge ultimately ordered that, now, the mother made a series of varying but serious allegations against the father and then said she was facing homelessness in her in her town of origin, but had a fabulous job in the new place. That evidence all really sort of collapsed at the hearing and the judge ultimately found while he considered the mother’s allegations to be grave, that there were other things that she ought to have done to address that risk and that she could not effectively be rewarded for her unilateral actions. So, she was brought back to the town of origin and then the matter was remitted for hearing and the old arrangement of time between mother and father continued.

Think about the long term plan

So, that is like the absolute opposite of what to do. So, relocation needs to be very carefully planned, very carefully thought out. You may have an incredibly strong case, but there’ll still not be a guarantee of outcome. But you are for a large part guaranteeing yourself an unfortunate outcome if you take matters into your own hands. It’s also important for it to be a very finely crafted strategy from the beginning. Because if you’ve said and done different things in the period leading up to making the application, for example, here you make significant allegations against the other parent. But three or four months ago, you left them there voluntarily for three or four weeks while you went on a holiday. Not helpful. So, you have to be thinking about those things in a long term plan. And patience is absolutely vital because the process takes a significant period of time. Will generally involve a family report where an expert will meet all of you and in one day make some recommendations about you and your children’s lives.

So, if you’d like to talk to us about relocation or any of those other issues, please don’t hesitate to contact us here at Cooper Grace Ward.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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