It is not at all uncommon for one (or both parents) to wish to relocate after a separation. If the relocation will not affect existing or proposed arrangements for children, it is less problematic. When it will affect those arrangements, these cases can be difficult to resolve with fairness to all parties involved.
If considering relocation legal advice is essential. If one parent relocates without the other parent’s consent, the other parent (or person concerned with the care, welfare and development of the child) may apply to the Court for an order that the child be returned. The Court has the power to order a child’s return if it determines that to be in the child’s best interests, and will often do so pending its determination. It is therefore advisable to obtain the other parent's consent and/or a court order permitting the relocation first.
Whilst the Family Law Courts have ruled that relocation cases are not a separate type of case, in determining the best interests of a child, the following is a list of factors that may be considered. This list is by no means exhaustive as each case will be assessed individually according to the circumstances involved.
- The reason/s why the parent wants to relocate (for example, employment prospects, new partner, family support, to escape family violence) and how these may relate back to the child's best interests, which is the paramount consideration
- The parent's proposal to ensure the children can still spend time or communicate with the other parent (for example, communication by phone, holiday time with the other parent or even the relocation of the other parent)
- The ease of travel between the residence of each parent
- Each parent's attitude to the other parent (for example, where there is evidence of an unwillingness on one parent’s behalf to facilitate the child's relationship with the other parent this can weigh against them)
- The willingness of others (for example, extended family, parent’s new partners) to facilitate the child's relationship with the other parent
- The relationship the child has with siblings, half-siblings or other family members and how that would be affected by the proposed relocation
- The child's age and their wishes
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.