Australia: Relocating to another state with your child after divorce: steps you can take

Last Updated: 30 January 2017
Article by Ruth Whisker

So you've met the partner of your dreams and want to live happily ever after, but there's one small problem – he or she lives interstate and you don't know if you will be permitted to relocate your child to another state.

The first thing to do is to approach the other parent, explain your situation and your desire to move yourself and the child interstate and try to reach an agreement allowing the child to move with you.

What you need to be able to tell the other parent when discussing relocation

It is important to provide reassurance for the other parent that they will always be the child's father or mother and you will do everything you can to reinforce the relationship.

What benefits does the new state have for the child? What school do you propose the child attends? What is that school's reputation? What extra-curricular activities will the child be able to participate in? Is there anything special that the child will be able to do in the proposed new home town beyond what they can do where they are currently living? For example, such opportunities could include scholarship programs or specialist coaching.

Employment opportunities for you – if you are moving to a job and will be working, the other parent isn't going to be as worried about your move leading to an increase in child support, as well as an increase in the costs of contact.

How long your new relationship has been going – the longer you have been in the relationship, the less threatening or risky your proposed move will seem to the other parent. This is because first, the child will have maintained a relationship with both "dad" and "step-dad" (or "mum" and "step-mum") for some time. Secondly, there will be a perceived lower risk of the relationship ending shortly after you relocate and you wanting to move again. Repeated moves would be unsettling for the child.

Setting out your plans for contact between the child and the other parent

It is important to put forward a proposal to the other parent about contact between them and the child should you be allowed to move. Some options include:

  • Skype, Facetime or similar videoconferencing platform
  • Telephone contact
  • Physical contact – what is the proposal here? How frequent will the physical contact be? What are the costs of travel and who will bear the costs of airfares? Is the child old enough to fly unaccompanied? Some of the more extreme but workable arrangements I have seen where the relationship between the parents is amicable include the other parent being able to stay with their ex and the ex's new partner and being provided with the use of a car for the duration of the visit.

If you are lucky enough to reach an agreement with the other parent, then you should immediately record that agreement in writing, preferably by parenting consent orders.

What happens if you can't reach an agreement with the other parent?

It may well be that you can't reach an agreement (or can't even talk to the other parent). You must at least attempt family dispute resolution (unless there has been family violence or some other limited exceptions) before you can apply to the Federal Circuit Court for an order permitting relocation.

Obtaining an order permitting relocation is very difficult, especially if the court determines that it is in the best interests of the child to spend significant and substantial time with each parent. For the court, the paramount consideration must always be the best interests of the child.

Applying to the Federal Circuit Court for a relocation order

In addition to all the factors listed above for discussion with the other parent, you will need to include the following details in your application to relocate:

  • Specifically where are you going? What suburb, what address? What is the housing situation – are you moving in with your partner? Will you be renting elsewhere? If so, can you afford the rent? What are rental vacancy numbers like? Is it foreseeable that you will even be able to rent immediately? Will the child have his/her own bedroom?
  • Can you afford the relocation costs – removalists, rental bonds, rent etc?
  • What are the plans for before and after school care if you are going to be working?
  • Do you have any support in the new state besides the new partner – friends or family?
  • History of your relationship with your new partner – the longer and more committed, the better
  • Relationship between the child and the other parent
  • Relationship between the child and your new partner
  • How you have promoted the child's relationship with the other parent in the past and how you will continue to do so if the child is permitted to relocate

Make sure your proposals for contact with the child are age appropriate

There is no point proposing Skype and telephone contact for a very young child as they do not have the attention span or understanding for meaningful relationship building this way. Skype and telephone are better options for older children, particularly to reinforce relationships that have been long developed before separation or relocation.

The court will not view Skype or telephone as good options to build or maintain a meaningful relationship between a young child and its parent.

It is also inadvisable to propose air travel every weekend for a high school student who will have assignments and exams which would be impacted by travel.

What if I just up and leave with the child – will the court order me to go back?

The answer is probably yes, unless there is some very special circumstance that would make it inappropriate to do so. Not only will the court almost certainly order that you go back, but they may order that you pay the other parent's costs of applying to the court to have the child returned.

In addition, you will almost certainly have the judge offside and destroy any chance of making a successful application to relocate if you do it without permission first.

So what do I do if I want to relocate interstate with my child?

The information in this article is not exhaustive, so if you find yourself in this situation, the best thing to do is contact a lawyer first to discuss the matter and they will be able to advise you in relation to your particular circumstances.

Ruth Whisker
Family law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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