Children

Child Relocation Advice & Orders in Melbourne

In our increasingly mobile world, it’s common for parents to consider relocating with their children after separation - whether for new work opportunities, to be closer to family support, or to start a new chapter in life. However, when children are involved, moving a significant distance, especially interstate or overseas, requires careful consideration of legal obligations and, most importantly, the children’s best interests.

At Kelly & McHale Family Lawyers, we provide expert advice and representation for parents wishing to relocate with their children, as well as for parents who may oppose a proposed relocation.

Understanding the Legal Framework for Child Relocation

If you share parental responsibility for your child, or if there are court orders in place regarding parenting arrangements, you generally cannot unilaterally decide to relocate with your child if the move will significantly impact the child’s ability to spend time with the other parent.

  • Consent is Key: The first step is always to try and reach an agreement with the other parent. If the other parent consents to the proposed move, this agreement should be documented, preferably in a formal way such as a Parenting Plan or, for greater certainty, by applying to the Court for Consent Orders reflecting the new arrangements.
  • When Consent is Not Given: If the other parent does not agree to the relocation, you cannot simply move. You will need to apply to the Federal Circuit and Family Court of Australia for a relocation order. The Court will then decide whether to permit the relocation based on what is in the best interests of the child. This remains the paramount consideration in all parenting matters, including relocation.

Factors the Court Considers in Relocation Cases

When deciding a relocation application, the Court undertakes a careful balancing act, considering a wide range of factors, including:

  • The child’s best interests (as detailed under our Parenting Arrangements section.
  • The reasons for the proposed relocation: Are they genuine and well-thought-out (e.g., significant job offer, essential family support, access to specialised education or medical care)?
  • The impact on the child: How will the move affect the child’s stability, education, social connections, and overall well-being?
  • The child’s views: Depending on their age and maturity, the child’s preferences may be considered.
  • The existing relationship between the child and each parent: The nature and frequency of contact with both parents.
  • The proposals to ensure the child can maintain a meaningful relationship with the parent left behind: What are the practical arrangements for contact, travel, and communication if the relocation is permitted? This includes considering the cost and difficulty of maintaining contact.
  • The alternatives to relocation: Has the moving parent considered other options?
  • The history of the matter: Including previous parenting arrangements and the level of co-parenting.

There is no presumption in favour of, or against, relocation. Each case is decided on its own unique facts.

Urgent Situations: Preventing Unlawful Relocation or Seeking Recovery

Sometimes, urgent action is required:

  • Preventing Unlawful Removal: If you fear your child may be relocated without your consent or a court order, especially overseas, we can help you take urgent steps. This may include applying for:

    • Court Orders: To prevent the child from being removed from their current location, State, or from Australia.
    • Airport Watchlist Orders: To alert the Australian Federal Police if someone attempts to take the child out of the country.
    • Orders to Prevent Passport Issue: If your child does not have a passport, or if their passport is due for renewal, orders can be sought to prevent a passport from being issued or to require the surrender of an existing passport.
  • Seeking the Return of a Child (Abduction):
    • Domestic Relocation: If a child has been wrongfully relocated within Australia, we can assist in applying to the Court for recovery orders.
    • International Abduction: If a child has been wrongfully removed from Australia to another country, or retained overseas without consent, Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This international treaty provides a legal framework for seeking the prompt return of abducted children to their country of habitual residence. Kelly & McHale Family Lawyers can assist in liaising with the Australian Central Authority (located within the Commonwealth Attorney-General’s Department) and overseas legal representatives to facilitate recovery proceedings under the Hague Convention.

How Kelly & McHale Family Lawyers Can Assist

Child relocation matters are complex and require expert legal advice. Our experienced team can:

  • Advise you on the prospects of success if you are considering relocating with your children.

  • Assist you in negotiating with the other parent to try and reach an agreement.

  • Prepare applications for relocation orders or help you respond if the other parent is seeking to relocate.

  • Represent you in Court, presenting your case clearly and effectively.

  • Assist in urgent situations to prevent the unlawful removal of a child.

  • Guide you through the process of seeking the return of a child who has been wrongfully removed or retained, including Hague Convention matters.

We understand the significant emotional and practical implications of child relocation and are committed to achieving the best possible outcome for you and your children.

Frequently Asked Questions (FAQs) about Child Relocation

Here are some common questions parents ask regarding the relocation of children.

Do I need the other parent’s permission to move to a new suburb within the same city?

Generally, if the move is within the same city or local area and does not significantly impact the existing parenting arrangements or the child’s ability to spend time with the other parent (e.g., same school, similar travel time for contact), you may not need formal consent or a court order. However, it’s always best to communicate openly with the other parent about any proposed move. If the move does make it significantly more difficult for the other parent to maintain their relationship with the child, then consent or a court order is advisable.

To help us advise you: How far are you proposing to move, and how would it affect the current parenting arrangements and the child’s school?

What are my chances of being allowed to relocate with my child interstate?

There’s no simple answer, as each case is decided on its own facts and what is in the child’s best interests. The Court will weigh up your reasons for wanting to move and your proposals for the child to maintain a relationship with the other parent, against the other parent’s reasons for opposing the move and the impact on the child. Strong, well-thought-out reasons and practical proposals for contact are crucial.

To help us advise you: What are your primary reasons for wanting to relocate? What are your proposals for how the child will maintain a relationship and spend time with the other parent if the move occurs?

If I have sole parental responsibility, can I relocate without the other parent’s consent?

Even with sole parental responsibility, if there are orders for the child to spend time with the other parent, relocating in a way that breaches those orders or significantly impacts that time usually requires the other parent’s consent or a new court order. Sole parental responsibility relates to decision_making, but existing orders about time still need to be considered.

To help us advise you: Are there current court orders in place regarding parental responsibility and the time the child spends with each parent?

What happens if the other parent moves with our child without my consent?

If the other parent relocates with your child without your consent or a court order, and this move significantly impacts your time with the child or breaches existing orders, you should seek urgent legal advice. You may be able to apply to the Court for orders requiring the child to be returned.

To help us advise you: Has the other parent already relocated with the child, or threatened to do so? Are there any court orders in place?

How does the Court find out what my child wants in a relocation case?

The Court can find out about a child’s views in several ways, depending on their age and maturity. This might be through a report prepared by a Court Child Expert or a private family report writer who interviews the child and parents, or in some cases, an Independent Children’s Lawyer may be appointed to represent the child’s interests and inform the Court of their views.

To help us advise you: What are the ages of your children? Have they expressed any views about a potential move?

What is an Airport Watchlist Order?

An Airport Watchlist Order (also known as a PACE alert) is an order made by the Court that alerts the Australian Federal Police (AFP) to prevent a child from being removed from Australia. If someone attempts to take the child through an airport, the AFP will be alerted and can stop them. This is an important measure if there’s a real risk of international child abduction.

To help us advise you: Do you have specific fears that the other parent might try to take your child overseas without your consent?

If my child is taken overseas, is it impossible to get them back?

Not necessarily, but it can be very complex, time-consuming, and expensive. If your child is taken to a country that is a signatory to the Hague Convention on International Child Abduction, there are established legal processes to seek their return. If the country is not a signatory, diplomatic channels or legal action in that country may be the only options, which can be much more difficult. Early, expert legal advice is critical.

To help us advise you: Do you know where the other parent might take the child, or do they have strong ties to another country?

Guidance Through Complex Relocation Decisions

Child relocation cases require sensitive handling and a deep understanding of family law. Contact Kelly & McHale Family Lawyers today for your free first consultation to discuss your specific situation

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