Legal roadblock to relocating with your children

10-September-2013 Family Law By Simone Green



It is very difficult for a parent to move interstate or overseas with their children if their former spouse does not give permission.
If the other parent opposes the move, the parent seeking to relocate will need to obtain an order from the Family Court authorising it.

But the Court never authorises such a relocation without full consideration of the consequences of the move on the children. 

When an application to relocate comes before the Court, there are a number of factors that are taken into consideration.
Heath & Heath is a Family Law case where the mother of two children sought an order that she be permitted to relocate from Australia to the United Kingdom with her children. The father opposed the order.

The Court needed to consider what parenting orders should be made to foster the best interests of the children.
In the end, the Court decided the children’s relationships with their family in Australia would likely be damaged if they relocated to the UK, so the Court did not authorise the move. 

The main factors considered in the case, which fall under Section 60CC of the Family Law Act 1975, are outlined below:

  1. The benefit to the child of having a meaningful relationship with both parents: The Court held that the children would enjoy and benefit from a meaningful relationship with both parents and to do so fully they must have, in the Court’s view, immediate access to the presence and influence of each of the parents.
  2. The need to protect the child from physical or psychological harm: The Court was of the view, in this matter, that the children were in danger of psychological harm due to the unhappiness of their mother.
  3. Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that give weight to the child’s views: The Court, having regard to the ages of the children, said it would treat their views as informative and their views would carry some weight.
  4. The nature of the relationship of the child with (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child): In this particular situation, the parents conceded that the children had a close and loving relationship with each of their parents and their extended families.
  5. The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent: The Court held that the mother had clearly put the children’s relationship with their father at risk of not being close. She held a strong desire to move to the UK with her children, knowing the father would not follow.
  6. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child or other relative with whom he or she has been living: The Court decided that the children should not be permitted to relocate to the United Kingdom because of the likelihood that current relationships with family in Australia would be damaged. Accordingly the children continued to reside in Australia and were primarily to live with the mother.
  7. The practical difficulty and expense of a child spending time with and communicating with a both parents and whether that will substantially affect the child’s personal relationship and regular direct contact with both parents: In the event the mother relocated with the children to London, there would be a practical difficulty and expense of the children spending time and communicating with their father. Despite there being the possibility of electronic contact and some physical contact with the father, the Court took the view that such a move would substantially affect the rights of the children to maintain personal relations of quality and direct contact with both parents on a regular basis.
  8. Any family violence involving the child or a member of the child’s family: Although there had been instances of verbal abuse, the Court noted that there appeared to be a determination between the parents to avoid further instances again.
  9. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child: The Court’s intention was to make orders that would best avoid further litigation.    
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