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01 July 2020

How does the Federal Circuit and Family Court deal with a parent unilaterally relocating their children?

When family lawyers refer to ‘unilateral relocation’, we mean situations where a parent has moved their children’s residence a great distance without the other parent’s consent.

When family lawyers refer to ‘unilateral relocation’, we mean situations where a parent has moved their children’s residence a great distance without the other parent’s consent.

It can be fatal to your case to unilaterally relocate your children without the court’s permission. The risk is that the court views this conduct as disregarding the views of the other parent, not allowing your children to have a relationship with the other parent and acting in a manner inconsistent with your children’s best interests.

However, unilateral relocation is only one factor in a case, and there can be very legitimate reasons for it, for example where there is significant family violence or financial impoverishment.

What should you do if you want to relocate with your children?

Our general advice is to first discuss your proposed relocation with the other parent, ideally utilising family dispute resolution (although we appreciate this may not be an option in circumstances of significant family violence). If there is an agreement reached for you to move, ensure this is in writing by way of a parenting plan or preferably a consent order.

If the other parent does not agree to your children moving, seek the advice of an experienced family lawyer to discuss the prospects of an application seeking the court’s permission to relocate your children or whether unilateral relocation is appropriate in your circumstances.

In filing an application to relocate, or when responding to a court application after you have moved unilaterally, you may wish to consider the following:

  1. Despite your children living in a new location, are you still able to facilitate them spending the same amount of time they had previously spent with the other parent?
  2. If not, can you still offer the other parent substantial time with the children and what is your detailed proposal?
  3. To facilitate the children spending time with the other parent, are you in a position to pay all or some of the costs of your children’s travel to see the other parent, or the parent’s travel and accommodation to see your children?
  4. How arduous will the travel be for your children and is this sustainable long term?
  5. During periods where your children are not spending face to face time with the other parent, can you facilitate them having FaceTime and phone calls?
  6. Do you have appropriate long term accommodation in your new location?
  7. Do you have work and the ability to earn an income and pay your expenses in your new location? Had your work opportunities dried up in your old location?
  8. Do you have a support network of family and friends in your new location?
  9. Do your children have any half-siblings in their new location or old location and what is their relationship like?
  10. If your reason for moving is due to family violence, what corroborating evidence do you have (e.g. police reports, protection orders and doctor’s reports)?
  11. How will your mental health be affected in your new location compared to your old residence, and do you have corroborating evidence such as a psychologist’s report?
  12. Are your children of school age and, if so, what schooling is available in your new location? How were they progressing at their old school compared to how they are going at any new school?

Need help with your relocation matter?

Given how finely balanced these types of court applications can be, and how significant a judge’s decision can be on a parent’s lifestyle and the ability to live where they want, it is imperative to seek early advice from a family law expert.

Please feel free to contact one of our experienced family lawyers if you need assistance in your relocation matter.

We have prepared a further article on what the family law cases say about unilateral relocation which you can access here.

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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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Justine Woods
Craig Turvey
Special Counsel

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