Moving with children after divorce: Relocation and Parental responsibility

Under Australian family law upon separation, there is a presumed notion of equal shared parental responsibility. Equal and shared parental responsibility is a legal principle in family law that expects both parents to participate in major decision-making for their children, especially post-separation or divorce. It focuses on cooperation and mutual decision-making for issues like education, health, and cultural upbringing. Importantly, this doesn't imply equal time spent with the child, as arrangements depend on the child's best interests. Everyday decisions are typically made by the parent the child is with at the time.

This presumption however, can be modified by a Court issued parenting order. The concept of equal shared parental responsibility mandates that parents must mutually agree on significant decisions that shape their children's lives. Such decisions encompass:

• The choice of school for the children

• Decisions pertinent to the children's health and wellbeing

• The children's religious and cultural upbringing

• Alterations to the children's living arrangements

• Changing the children's names.

While equal and shared parental responsibility is generally encouraged, there are specific circumstances where it may not be applicable. These include instances of family violence or child abuse, lack of cooperation from one parent, incapacity of a parent due to severe mental health issues or substance misuse, and significant geographic distance between the parents. In all such cases, the primary guiding principle is the welfare and best interests of the child.

You might want to relocate with your children for various reasons. Such scenarios could include starting a life with a new partner who resides in a different location, seizing a job opportunity in a new city or country, returning to your hometown to be closer to family and friends, or simply seeking a fresh start in a new place. In such situations, it's highly advisable to discuss your relocation plans with the other parent initially.

If you are planning to move with your child, it's crucial to respect the rights of the other parent and adhere to any existing parenting orders. If the other parent contests the relocation, it may necessitate obtaining permission from the court. While a move that notably impedes the child's opportunity to spend time with the other parent can generally be seen as a violation of legal requirements, this may not hold true in circumstances where a court order is present due to family violence. In such a scenario, it may not be considered a breach. As such, when dealing with such significant shifts, obtaining sound legal advice is of the utmost importance.

When contemplating relocation with your child after divorce, there's a set procedure to follow to ensure legal compliance and the best interests of the child. Here's a step-by-step guide:

1. Consult the Other Parent: The first step should always be to discuss your intention to relocate with the other parent. This discussion is crucial, especially if both parents have equal shared parental responsibility. A mutual agreement on relocation can significantly simplify the process.

2. Seeking Consent: If the other parent agrees to the relocation, it's beneficial to have this agreement formally documented. This can help prevent any future misunderstandings or conflicts.

3. Dispute Resolution: In case the other parent does not agree, you might consider dispute resolution services. These services, such as mediation or counselling, can help parents come to an agreement without resorting to legal action.

4. Applying to the Court: If you can't reach an agreement even after dispute resolution, the next step is to apply to the court for an order allowing you to relocate with the child. It's highly recommended to seek legal advice before taking this step, as court proceedings can be complicated and stressful.

5. Court Evaluation: If you do apply to the court, they will evaluate your case based on various factors, with the child's best interests as the paramount consideration. The court will look into factors such as the reason for relocation, the impact on the child, and the effect on the child's relationship with the other parent.

6. Court Order: If the court is satisfied that the relocation is in the child's best interests, they will issue a court order allowing the move. It's essential to comply with the terms of this order, as failure to do so can have serious legal consequences.

Remember, it's essential to consider the child's emotional and psychological wellbeing at every stage of this process. A change as significant as relocation can have a profound impact on a child, so it's important to communicate with them, consider their feelings, and offer them the necessary support.

While relocation and parental responsibility present complex challenges in the aftermath of a divorce, understanding the law and prioritising the child's best interests can help navigate this process. Engaging a family lawyer can be extremely beneficial in these situations. Experienced professionals can provide you with the appropriate advice and guidance throughout the process.

At MJ Legal, we provide professional services dedicated to assisting clients who are navigating the complexities of relocation and parental responsibility issues. Our experienced team is on hand to offer personalised counsel and support, tailored to your specific circumstances.