What Is Child Relocation
In terms of family law, child relocation is the changing of a child’s living arrangements so that it becomes difficult for the child to spend time with both parents.
Parents with an equal and shared parental responsibility should try and make a genuine effort to resolve this issue in a friendly manner that takes the best interest of the child into account. If there are no court orders in place, we must look at the legislation and the relevant case law to understand how judges apply the law to individual cases.
The relevant legislation is s65DAA of the Family Law Act.
The Court is required to follow a strict step-by-step process when considering if a child should be spending equal time or substantial and significant time with each parent.
The court may or may not allow a relocation depending on the specific factors of the case. However, the court always focuses whether or not the relocation will be in the bests interests of the child.
This does not necessarily mean that the relocation would not be possible due to the child spending time with both parents. Sometimes it would not be beneficial for the child to have parents living far away from each other; but individual cases have shown that relocation is possible when it would change the circumstances of a parent for the better, and thus enable that parent more time, or more quality time, to spend with the child.
How to Prevent Child Relocation
Child relocation will be prevented in a most effective way by ensuring that there are parenting orders or a parenting plan in place.
If there are court orders already in place, there will be an order in relation to relocation. Check your last set of court orders for this. If this is the case, and a parent wants to move away, they must obtain permission from the court.
You may think that the court is likely to grant this permission, but it doesn’t have to be the case. The court may not be satisfied that moving away from one parent is in the best interests of the child.
If the other parent wants to relocate with the child, you can oppose their application to stop them from doing so, and tell the court why you think this should not happen.
If you and your former spouse don’t have any parenting orders in place, contact Withstand Lawyers to get them organised.
My Child Has Already Been Relocated
Once in a while, a parent will take the child and relocate without discussing that with you. If the event of this happening, you can apply to the court for a Recovery Order to return the child to where they normally live. A recovery order enables the police to take action to find, recover and return the child. It can also prohibit the parent from again removing or taking possession of the child. An attempt to remove or retake possession of the child would be a breach of the order.
You can apply for a recovery order if you have parental responsibility for the child, or if you are not a parent, but are concerned with the care, welfare and development of the child. For example, if you are the person the child lives with, or spends time with, such as a grandparent or an aunt.
You should file your application for a recovery order at the Federal Circuit Court. If there are no current parenting orders, you should apply for one as well. The court will then either grant of refuse your application for a recovery order. Note that when doing so, the court will always consider what is in the best interests of the child.
If you are not sure whether or not you have the basis for applying for a recovery order, contact one the lawyers at Withstand Lawyers to discuss and evaluate your circumstances.
When it comes to the separation of partners, it is most likely they will discuss:
- parenting arrangements for the children of the relationship (if any): who gets to stay with whom, for how long, etc.
- how the joint property will be divided in the property settlement
- spousal maintenance – whether it is needed and how much it should be worth.
If you can reach an agreement on any or all of the above matters, you can save time and money by applying for Consent Orders.
An Application for Consent Order consists of two documents:
1. The Application for Consent Orders
This document is approximately 25 pages long, and must be completed by both parties. You will both have to disclose detailed personal and financial information, such as disclosure of all assets and their values. Disclosure has to be full and frank.
2. The Minutes of Consent
In this document you will provide details of what orders are sought by you and your spouse. For example, you can include details regarding what will happen to the motor vehicle Nissan Micra, registration 123XYZ.
It is important to note, however, that you reaching the agreement with your former spouse does not necessarily mean that it will be accepted in court. The Registrar who receives your Application for Consent Orders and Minutes of Consent must be satisfied that the agreed settlement or spousal maintenance arrangements are fair and reasonable, and that the parenting arrangements are in the best interests of the child.
If the Court is not satisfied, they can seek further clarification from the parties as to why the Court should approve the agreed terms.
If you want to strengthen your chances for the Application for Consent Orders to be accepted, get in contact with the Withstand Lawyers experts. We will help you understand your legal options and what you need to consider when you want to get consent orders.