The Road Less Travelled – Can I relocate with a child?

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In the wake of COVID-19, we have seen a burst of people moving cities, towns, states, territories and countries for various reasons including to be closer to family, for lifestyle reasons or even just a change of scenery. However, what happens if the child’s parents are separated and one of them wants to move with the child?

The parent wishing to relocate with the child must have the consent of the other parent or have the Court’s permission. If a parent does not consent, the parent wanting to relocate will need to apply to the Court for an Order permitting them to relocate.

When considering whether to permit the relocation, the Court applies the following principles:

1. the paramount consideration is what is in the best interests of the child but it is not the sole consideration;

2. the parent wanting to relocate with the child does not need to prove that they have "compelling reasons" for the proposed relocation;

3. the Court must evaluate each parent's proposal and consider the advantages and disadvantages and the prac­ticality of each proposal against the child’s best interests. The Court is required to consider all possible options and is not bound by each party’s proposal;

4. a parent's freedom to relocate must give way when it conflicts with the best interests of the child.

The other factors that the Court considers when deciding whether it is reason­ably practicable and in the best interests of the child to spend time with each parent in the context of a proposed relocation include:

1.  whether the relocating parent has support networks (both emotional and financial) in the place where they propose to move or the lack of them in the place from which they seek to relocate;

2. the ability and prospects of the relocating parent to obtain employment;

3. financial considerations (including the cost of travel and who will meet that cost);

4. the child’s wishes;

5. whether the non-relocating parent could or would move with the other parent and child;

6. what orders are being proposed for the child to spend time with the non-relocating parent in the future; and

7. any evidence that the relocating parent’s mental health may be compromised if they are not permitted to move and the impact that this would have on their parenting capacity.

As the Court has a wide discretion as to whether they will permit a child's relocation, it is important that parties seek legal advice from experienced family law practitioners from the outset.

 Written by Stephanie Wilkinson, Partner